68 Mass. 521 | Mass. | 1854
According to the recent decision of this court in Dixie v. Abbott, 7 Cush. 610, a defendant, under the old rules of practice, which required him to specify only matters in discharge or avoidance of the action, might, in an action of indebitatus assumpsit for goods sold, give in evidence, under the general issue, without any specification of defence, any facts which tended to show that the transaction relied on in support of the action was in contravention of a statute and therefore void for illegality. But this rule of practice was changed by St. 1852, c. 312, §§ 14,15, so far, at least, as relates to actions on the' common counts and the count on an account annexed. By these sections, it is required, not only that “ the answer shall deny, in clear and precise terms, every substantive fact intended to be denied in each count of the declaration separately, or shall.de*
In the case at bar, the answer of the defendant denied only the sale and delivery of the several items of lumber specified in the account annexed. The sale and delivery therefore were the only facts which the plaintiff was bound to prove at the trial, or which the defendant could be permitted to controvert. No evidence was relevant, which was not pertinent to this precise issue. The testimony offered on the part of the defendant did not tend to disprove either of these facts. On the contrary, the grounds of defence, which the defendant thereby sought to develop, implied an admission of the sale and delivery of the lumber, and set up the new and distinct fact, that it was sold without a survey, contrary to the provisions of the statute; and that, for this reason, no action would lie to recover the price. We are therefore of opinion that the court, in rejecting the evidence offered by the defendant, and refusing to give the instructions asked for by him, acted on a sound construction of the practice act, as applied to the case on trial; and that the exceptions, for this reason, cannot be sustained.
Exceptions overruled.