69 P. 468 | Utah | 1902
It is alleged in the complaint “that on the eleventh day of May, 1895, the defendant, W. E. Travis, had a contract with the United States Government, in due form of law, for the transporting of the United States mails on a mail route known as ‘No. 43349,’ from Belle Plaine, in the State of Iowa, to Irving, in said State of Iowa, which contract ran from the first day of July, 1895, to the thirtieth day of June, 1899, both dates inclusive, and had obtained permission from the United States to sublet the work under said contract; and on the said eleventh day of May, 1895, the said defendant, W. E. Travis, entered into a contract in writing with this plaintiff, copy of which is hereto attached, and marked ‘Exhibit A,’ by the terms of which he sublet to this plaintiff the work of carrying the mails over said route from
The plaintiff was permitted, over the objection of the defendant, to introduce, in chief, testimony of witnesses tending to disprove the alleged mutual mistake in drafting the written contract. The defendant, when plaintiff rested, moved for judgment upon the cross complaint on the ground that there was no reply thereto. The motion was overruled, and the plaintiff recovered a judgment for $358.64 and costs. The refusal of the trial court to sustain this motion is assigned as error. The appellant’s contention in respect to this subject, as stated in the brief of his counsel, is as follows: “The appellant’s first contention is that the court should have rendered judgment in favor of the defendant, reforming the instrument sued on, for the reason that the plaintiff had not replied to or controverted in any way the defendant’s counterclaim, thereby admitting all of the facts as true. It is true that the pleading was not designated as a 'counterclaim’ or 'cross-complaint,’ but the affirmative allegations, together with the prayer for relief stated a cause - of action in favor of the defendant and against the plaintiff, which, if set up in a complaint, would have been a foundation for a judgment. Our contention is that the court looks at the matter contained in the pleading and the prayer, and, regardless of how the pleading may be designated, relief is granted in accordance with the allegations in the answer, and not because it may be entitled by any peculiar name. If the pleading is merely an answer, we are not entitled to any relief under it. If, however, the allegations are sufficient to make it a counterclaim, then we are entitled to relief, and a reply is necessary.” In answer to this, counsel for the respondent contend that
In view of these provisions, the point of contention under consideration hinges upon whether the new matter alleged in the answer constitutes a counterclaim, and - is admitted by the plaintiff’s failure to traverse the same in a reply. In the motion for judgment it is designated as a “cross-complaint.” "While it constitutes a cross-demand, and is in the nature of a cross-complaint, and under the provisions of section 3231 of the Compiled Laws of 1888, which permitted a cross-complaint to be filed against both the plaintiff and a co-defendant, might have been properly designated as such, as that section has been amended and superseded by section 2974, Eevised Statutes 1898, the provisions of which do not authorize the filing of a cross-complaint, except by the defendant against a co-defendant, when the former has a cause
This brings us to the question whether the matter set up in the answer constitutes, under the provisions of the Code, a counterclaim, which, if not controverted by a reply, must, for the purposes of the action, be taken as true. Section
•It appears from the allegations of the complaint and the findings of the trial court that the defendant has paid to the plaintiff the amount due under the contract, when it is modified in accordance with the allegations of the answer. It is ordered that the judgment be reversed, with costs, and that the case be remanded, with instructions to the court below to enter a decree reforming the written contract in accordance with the prayer of the equitable counterclaim, and awarding to the defendant his costs, and that the plaintiff take nothing under his complaint.