36 Minn. 132 | Minn. | 1886
The principal question in this case is presented here, as it is evident it was presented to the court below, only as a matter of pleading. In its construction of the answer of the defendant How, the district court was right. The complaint alleged the misappropriation by E. B. Lincoln of $2,958.17 of insurance money due upon policies of insurance, upon property of Lincoln Bros, held as collateral security to their note to plaintiff for $5,000, and contained allegations intended to show the right of the plaintiff to receive the money. The answer of How put these allegations in issue by a denial of “each and every allegation in said complaint not hereinbefore admitted.” It is claimed, however, by plaintiff that this general denial cannot operate as a denial of the allegations in question, for the reason that the answer contains a previous allegation that the said insurance money “was paid to the plaintiff by said E. B. Lincoln, before the commencement of this action, by the transfer to plaintiff of two thousand dollars of its capital stock, and by the payment in cash.” This fact is not inconsistent with want of right in plaintiff to demand the money, — with want of title to it. Hence the allegation of the fact is not an admission of such right or title, and the allegation is not inconsistent with, and does not modify, the effect of the general denial.
But the district court fell into error as to the amount recoverable on account of the insurance money. If the payment of that amount
The order appealed from will be modified by the court below, by •hanging therein the figures $2,814.63 to $3,016.45.