59 Kan. 319 | Kan. | 1898
This was an action upon a promissory note, brought by the plaintiff in error against the defendant in error, a corporation.
To this petition the defendant answered, first, by a general denial, and second, that the plaintiff had effected a sale of the lands in question to the said Fuller and procured the execution of the note by him by means of a fraudulent conspiracy between the plaintiff and other persons as his agents, by which they induced Fuller to believe the lands to be more valuable than they really were, and to purchase them at a price largely in excess of their real value, by representing and pretending to him that, in the event of his purchase of the lands, they, the agents, would take them off his hands at an advanced price and would pay for the same. To this second defense the plaintiff replied by a general denial.
The principal contention of the plaintiff in error is that the answer of the defendant should have been treated as a plea of confession and avoidance, in which case the allegations of. new matter contained in the answer would override or neutralize the general denial, and impose the burden of proof upon the defendant; or, if the answer should not be treated as a plea of confession and avoidance, the general denial and allegations of new matter as grounds of defense were inconsistent, and therefore the defendant should have been compelled to elect upon which it would stand; or, if neither of these contentions were sound, the allegations of new matter in the answer were immaterial, because, first, not amounting to a charge of legal fraud, and second, the fraud, if any was practiced, was upon Fuller and not upon the defendant. All of these contentions are so connected with each other they may be considered together.
We are aware that in actual practice objections are often made and sustained to defenses in answers upon the ground that they are inconsistent with each other. The question of the validity of such objections has seldom been presented to this court, and no attempt has ever been made to declare a general rule upon the
‘ ‘Assuming that the defenses are utterly inconsistent, the rule is established by an overwhelming weight of judicial authority, that, unless expressly prohibited by the statute, they may still be united in one answer. It follows that the defendant cannot be compelled to elect between such defenses, nor can evidence in favor of either be excluded at the trial on the ground of the inconsistency.”
“Taken together, the two defenses amount to this : That the defendant is ignorant whether he signed'the note or not; he does not believe he signed it, and therefore denies it; and that, if he did sign it, his signature was obtained by fraud, and without consideration.”
In the case of Pavey v. Pavey, 30 Ohio St. 600, a denial of the execution of a promissory note and an
“It is claimed that want of consideration can be pleaded only by way of confession and avoidance, and that therefore the second defense is necessarily inconsistent with the first. But the making of the note is not expressly admitted in the second defense. It can be regarded as admitted only by implication of law, as a mere technical supposition on which the defense proceeds, and not as an admission of fact. The true rule, then, would seem to be, that the defendant can be required to elect between defenses only where the facts stated therein are so inconsistent, that if the truth of one defense be admitted, it will disprove the other. In the case before us this inconsistency does not exist, .for it may be true that the defendant did not make the alleged note, and that there was no consideration therefor. Proof that would sustain one of the defenses would not necessarily disprove the other.” See Map Co. v. Jones, 27 Kan. 177-180.
So, in this case, it may be said that a denial of thé execution of the note in behalf of or as the obligation of the defendant may be well made, and it may also be true that the person by whom it was made was defrauded into its execution. Therefore, passing by the question whether inconsistencies between the several defenses of an answer may be tolerated, and assuming, for the purpose of meeting the objections of the plaintiff in error in this case, that they are not allowable under our practice, it wonld nevertheless seem that to justify the objection the inconsistency must be such as to constitute the proof of one defense a direct and positive denial of the other ; and that if the inconsistency between the two exists by inference or implication, and can be made out only by argument, both of them may stand.
The views thus expressed likewise dis] objection that the answer is to be treated
“When a denial is pleaded in connection with a ■defense of new matter, or two defenses of new matter ■are set up, the admissions in the one can never be ■used to destroy the effect of the other. The concessions of a defense by way of confession and avoidance do not obviate the necessity of proving the averments «contradicted by the denial. This rule is universal.”
Were the allegations of fraud practiced upon George P. Puller material as a defense in this case, he being, as alleged,' a stranger to the defendant, and his acts
An objection is made to the consideration of the answer as a defense, upon the ground of fraud, to a suit for purchase money, because it made no tender of reconveyance of the land purchased ; and a like objection is made to the consideration of the evidence received under ■ the answer, because unaccompanied by an offer of reconveyance. As a general rule, subject to some exceptions, an offer of reconveyance need not be made in the pleadings. The requirement is rather upon the court to impose equitable terms, than upon the rescinding party to propose them. Thayer v. Knote, 59 Kan. 181, 52 Pac. 433. If it appeared that the purchase by Fuller had in reality been made for the defendant, a reconveyance, perhaps, should have been adjudged; but it does not so appear.
The plaintiff in error claims that his evidence established the fact of the purchase of the land by Fuller for the defendant in error, and that the judgment of the court should therefore have been in his favor. The evidence as we view it is conflicting. Some of it