199 P. 704 | Mont. | 1921
delivered the opinion of the court.
This action was brought to enforce payment of a promissory note in the sum of $4,437.77, and to foreclose a mortgage upon the real estate of defendants, situated in Custer county.
The complaint alleges that defendants have failed to pay the principal or interest due thereon, except the sum of $128.20 indorsed on the note. The answer denies that the note and
Plaintiff’s position is that the statements of counsel that defendants would waive “all special defenses except the special defense of fraud,” and, after the court had overruled the defense of fraud, that defendants would rest their ease, amounted to a waiver and abandonment of all the other defenses pleaded. The contention of counsel must be sustained. The affirmative defenses are so at variance with the general denials that both cannot be true. By the rule announced in O’Donnell v. City of Butte, 44 Mont. 97, 119 Pac. 281, a defendant may plead as many inconsistent defenses as he may choose, but they must not be so incompatible with each other that if one is true the other must be false. The answer denies the making or delivery of the note and mortgage, and, in two separate and distinct affirmative defenses, directly .alleges that they were in fact executed and delivered to plaintiff. The incongruity of a pleading which denies matter in one paragraph, makes the
There being no allegation in the answer, nor proof that Bell did not intend to keep his promise to cancel and return
The order granting a new trial is reversed, with directions to set it aside.
Reversed.