109 F. 254 | 8th Cir. | 1901
This suit was instituted to recover the purchase price of certain engines and boilers alleged to have been sold and delivered by the defendants in error, who were the plaintiffs below, to the plaintiff in error, who was the defendant below. The answer, so far as the purposes of this case require any consideration of it, admits the purchase by and delivery to the defendant of the engines and boilers in question, but alleges that the plaintiffs agreed, as a part- of the consideration for the payment of the agreed price therefor, that the engines and boilers should be, among other
The Code of Colorado requires that an answer shall contain— First, a general or specific denial of each material allegation in the complaint intended to he controverted; and, second, “a statement of any new matter constituting a defense or counterclaim in ordinary and concise language, without unnecessary repetition.” This has been held in Colorado and in all code states, so far as we are advised, to require only the statement of ultimate facts, and does not require or justify the statement of details of evidence to prove the ultimate facts. The issue tendered by the answer was that the boilers in question were not of the best quality of workmanship or material, as required by the contract of sale. This answer, in our opinion, set up a good defense, and was not demurrable on the ground that it did not state facts sufficient to constitute a defense.
It is suggested in brief of counsel for defendants in error that the allegations of the answer are so general as to throw no light on the true ground of dissatisfaction. Even if that were true, the remedy was not by a motion to exclude evidence on the trial or for an instructed verdict. A good ground for recoupment of damages had been pleaded. The ultimate facts entitling defendant to such recoupment had been stated, and, if plaintiffs required more light concerning the details of the alleged bad workmanship or material, they had statutory process for securing it. Section 60, Mills’ Ann. Code, provides:
“When, any pleading is too general in its terms to be readily understood, the court may, on motion, require the same to be made more specific and certain, or may require a bill of particulars to be filed therewith.”
Instead of presenting a motion for more particular facts concerning the defective workmanship or material of the boilers, plaintiffs, by their replication, joined issue with defendant' on the general charge of defectiveness. It was too late for them at the trial, when defendant had taken them at their word, and had acted on their tacit consent to try the issue as joined, to complain for the first time of indefiniteness or uncertainty, merely, in the statement of the defense.
It is next urged that defendant is not entitled to recoup damages (after having accepted the machinery purchased) for the breach of the warranty in question, because the answer, in the language of counsel “does not count upon any breach of contract, nor allege that plaintiff has been damaged, nor pray for damages, nor ask to have damages sustained by it set off against the purchase price.” This view was not presented to the trial court, and might, with propriety, now be ignored by us, but, as we have considered it, we deem it is proper to say that we are unable to appreciate the exact meaning or applicability of counsel’s proposition. The answer, as already, seen, undoubtedly seeks to recoup damages sustained by defendant by reason of alleged breach of the warranty made by plaintiffs concerning the character of the workmanship and material of the boilers in question. This answer was not, in terms, called a “set-off,” or “counterclaim,” or “recoupment,” and perhaps was not technically pleaded as such; but, whatever it might have been styled, it was in fact a statement of such facts as entitled the defendant to diminish the plaintiffs’ amount of recovery; and, even if it be conceded that it was inartificially drawn, it was never challenged by any motion to make it more specific or certain. But it was not, in our opinion, obnoxious to any such criticism. The answer, especially under code practice and pleadings, was entirely sufficient to entitle the defendant to show, by way of reduction of plaintiffs’ recovery, the diminished value of the boilers in question, occasioned by the defective workmanship or material complained of. Winder v. Caldwell, 14 How. 441, 14 L. Ed. 487; Withers v. Greene, 9 How.
“It may be assumed that this clause of the answer [referring to the general denial], standing alone, was a good general denial, and that, if the defendant had said nothing more in its answer, it would have raised an issue as to the sufficiency of every part of the plant. But the defendant was not content to rest on this general denial. It afterwards chose to make its general denial specific, and to point out with great particularity the parts of the ice machine which it claimed were defective.”
Such being the case, the court held that the defendant was limited to proof of the particular defects pointed out, and that the general denial gave it no greater'latitude. That case, instead of being at all inconsistent with the conclusion reached in this case, is in perfect correspondence with it.
The relevancy and competency of certain questions put to witnesses for the defendant, which were made the subjects of assignments of error, will readily be determined by the principles already announced, and need no further consideration at our hands.
Inasmuch as the case must be tried again, we deem it proper to express our opinion on the first error assigned, namely, that the court erred in not permitting the defendant to open and close the case. It is well settled in the courts of the United States that the determination of the right to open and close a case rests largely in the sound discretion of the trial court. Lancaster v. Collins, 115 U. S. 222, 6 Sup. Ct. 33, 29 L. Ed. 373; Hall v. Weare, 92 U. S. 728, 23 L. Ed. 500; Day v. Woodworth, 13 How. 363, 14 L. Ed. 181. The pleadings disclose that the admission of the sale and delivery of the engines and boilers in question was rather argumentative in its character. The answer contains at least a denial that the engines and boilers delivered were the ones which were ordered. From these circumstances it appears that there was no abuse of discretion by the trial court in according to the plaintiffs the right to open and close the case.
For the reasons hereinbefore stated, the judgment of the trial court must be reversed, and the cause remanded for a new trial.