Gardner v. McWilliams

69 P. 915 | Or. | 1902

Mr. Chief Justice Moore,

after stating the facts, delivered the opinion of the- court.

It is contended by defendant’s counsel that the reference in the second separate defense to the facts thereinbefore stated in the answer was an allusion to matters of inducement only, which were thus properly incorporated in, and became a part of, the second separate defense, and that, this being so, the court erred in striking out the latter defense. The statute-prescribing the manner of averring new matter in an answer, so far as material herein, is as follows: ‘ ‘ The defendant may set forth by answer as many defenses and counterclaims as he may have. They shall be separately stated, and refer to the causes of action which they are intended to answer in such manner that they may be intelligibly distinguished”: Hill’s Ann. Laws, § 73. It is also provided that the plaintiff may ■ demur to one or more defenses or counterclaims, and reply to the residue: Hill’s Ann. Laws, § 77. Construing these provisions in pari materia, there remains little room for doubt that new matter constituting a defense must be complete in itself, and must contain all that is necessary to answer the whole cause of action, or that part of it to which it is addressed: Xenia Branch Bank v. Lee, 7 Abb. Prac. 372; Ayrault v. Chamberlain, 33 Barb. 229; Lippencott v. Goodwin, 8 How. Prac. 242; Hammond v. Earle, 58 How. Prac. 426. The rule is quite well settled that it ,is unnecessary to restate in a pleading facts contained in a prior count, which constitute matters of inducement, necessary to explain both; in which case the pleader, by referring to the preceding narrative, thereby makes it a part of the subsequent count: Haskell v. Haskell, 54 Cal. 262; Freeland v. McCullough, 1 Denio, 414 (43 Am. Dec. 685); Crookshank v. Gray, 20 Johns. 344; Curtis v. Moore, 15 Wis. 146. Matter stated in a pleading, constituting a history of the transaction (Wormouth v. Hatch, 33 Cal. 121), which naturally precedes and logically leads up to the gravamen of the action or defense (Abendroth v. Boardley, 27 Wis. 558),is denominated inducement (Henke v. Eureka Endow. Assoc. 100 Cal. 429, 34 Pac. 1089; Bellows v. Dist. Tp. of West Fork, 70 Iowa, 320, 30 N. W. 582), and should be pleaded, to enable the court to decide whether a prima facie case is presented (Dupre v. Rein, 7 Abb. N. C. 256); but the matters thus stated are not deemed material, and need not be denied: Fry v. Bennett, 5 Sandf. 54.

In the case at bar, the first separate defense, which, by adoption, is made a part of the second, is more than a history of the transaction, and contains matter not necessary to the second separate defense; for the alleged agreement that defendant’s cattle and horses were to be pastured on the leased land until April 1, 1901, evidently did not lead to the injury of the cellar nor to the destruction of the milk safe by plaintiff’s hogs. The averments of the first separate defense, when incorporated into the second, necessarily resulted in uniting two affirmative defenses that should have been separately stated, and rendered the latter subject to he stricken out as redundant. No error having been committed as alleged, the judgment is affirmed. Affirmed.