193 So. 506 | La. Ct. App. | 1940
The petition of plaintiff, J.D. Adams Company, in this suit which is predicated on an open account, contains three paragraphs, the prayer, and an affidavit.
The first paragraph recites that the defendant, Sidney J. Dauterive, is a resident of Rapides Parish, Louisiana.
The allegations of the second paragraph are: "That said defendant is justly and truly indebted unto your petitioner in the full sum of One Hundred and Four and 21/100 ($104.21) Dollars, with legal interest thereon from September 21, 1935 until paid, for parts furnished, labor performed and other necessary expenses incurred in connection with the repairs to a 22/36 tractor, McCormick Deering, Serial No. T.G. 139054 M, as will be more fully shown on an itemized account thereof annexed hereto and made a part hereof."
In the third paragraph it is alleged "that said account is past due and wholly unpaid, notwithstanding amicable demand."
The prayer is for service on the defendant according to law, and "that there be judgment in favor of your petitioner, J.D. Adams Company, and against the defendant, Sidney J. Dauterive, for One Hundred and Four and 21/100 ($104.21) Dollars, with legal interest thereon from September 21, 1935, until paid, for all costs of this suit, and for general relief."
An itemized statement is annexed to the petition as declared in paragraph two.
In due course, the following answer was filed:
"Now into Court, through undersigned counsel, comes Sidney J. Dauterive, defendant herein, and in answer to plaintiff's petition, with respect shows:
"Your respondent admits the allegations of paragraph (1) of plaintiff's petition.
"Your respondent denies all allegations of fact contained in paragraph (2) of plaintiff's petition; as to the conclusions of law therein set forth, your respondent shows that he is not called upon to admit or deny the same.
"Your respondent denies all allegations of fact contained in paragraph (3) of plaintiff's petition.
"Wherefore your respondent prays that the demands of plaintiff be rejected and disallowed, all at its costs. Prays for all orders and decrees necessary and for full and general relief."
On the trial of the case, the plaintiff offered in evidence the depositions of three non-resident witnesses, with attached documents, and certain correspondence; and it rested.
The defendant was then sworn as a witness in his own behalf. Before the propounding of any questions to him, however, the following objection was urged: "Counsel for plaintiff, Mr. Hawthorn, objects to any testimony in which the defendant seeks to deny any part of the account or as to any particular items on the account for the reason that no complaint is made in the answer of the defendant of any specific item thereon and that no specific item can be challenged under a general denial, because the defendant is required under Act
The objection was sustained and judgment rendered in favor of plaintiff and against the defendant, as prayed for. A motion for a new trial was thereafter filed and overruled.
Defendant perfected this appeal and now complains "that the ruling of the lower court in excluding defendant's proof under the form of answer filed by him does violence to every acceptable and recognized form of pleading in Louisiana. Further, the legal and practical effect of the ruling of the lower court is that the defendant, without valid reason, has not had his day in court. He has filed the character of answer permitted and even required by the Pleading and Practice Act of Louisiana, and yet he cannot offer proof thereunder."
Act No.
The statute under consideration permits, but does not require, the defendant to make affirmative allegations in his answer. The matter of what defenses must be specially pleaded is governed by the rules of practice that prevailed before the adoption of such statute. Newspaper Feature Service v. Southern Publishing Co.,
It appears to us that the answer in the instant controversy meets the requirements of the quoted provision of the Pleading and Practice Act, and properly places at issue plaintiff's demands. Therein, defendant has specifically admitted the allegations of paragraph one of the petition, and in like manner denied the allegations of paragraphs two and three. True, the answer does not separately refer to each of the various items listed on the statement attached to the petition, allegedly furnished by plaintiff, such as tractor parts, labor and expenses; but a separate reference thereto is unnecessary in view of the in globo allegations of paragraph two of the petition. Anent this question, it was said in Newspaper Feature Service v. Southern Publishing Co., supra [
In our opinion, the answer herein was sufficient to justify the introduction by defendant of any relevant and otherwise admissible evidence tending to show the nonexistence of all or any portion of the claimed indebtedness. Of course, a special defense could not be substantiated thereunder, for none was pleaded.
In the brief of plaintiff's counsel, our attention is directed to the following cross-interrogatory propounded by counsel for defendant to a witness for plaintiff, and to which reference was made in the quoted objection, viz: "Is it not a fact that Mr. Dauterive on several occasions advised you personally that he was willing to pay for the work done on the tractor that was necessary in connection with the drive pulley shaft but that he was not willing to pay for the work on the transmission which did not help the tractor and which was not necessary?"
It is then argued that such question indicated defendant's abandonment of the originally pleaded general issue and revealed an intention to introduce evidence in behalf of a special defense; and that as no such defense was pleaded, all evidence sought to be offered by defendant was correctly excluded by the trial court. This argument, we think, is not sound. If it be conceded arguendo that the interrogatory indicated a contemplated attempt to interpose a special defense, the deposition containing it was offered in evidence only by plaintiff and was no part of defendant's proof; and defendant is not precluded by that interrogatory from introducing such evidence as was admissible under his above-described answer. *509
The record does not disclose the nature of the testimony that defendant desired and sought to give. The objection was made and sustained before a single question was propounded. The trial court should have permitted counsel's questioning of him, allowed the introduction of any admissible proof bearing on the general issue as pleaded in the answer, and excluded all evidence relating to a special defense. If during the giving of his testimony defendant should admit that he owes a portion of the asserted indebtedness, such admission would be of importance only to the extent of aiding plaintiff in discharging the burden of proving its case.
Counsel for plaintiff cites and relies on Times-Picayune Publishing Co. v. Jacobs, supra. This case, as we appreciate it, is authority only for the proposition that payment is a special defense and must be pleaded in the answer; and it lends no assistance to plaintiff's position.
Accordingly, the judgment of the trial court is reversed and set aside, and the case is remanded to the trial court to be proceeded with in accordance with law and in a manner not inconsistent with the views above expressed. Costs of this appeal shall be paid by appellee, while all other costs shall await the final determination of the controversy.