James v. McPhee

| Colo. | Dec 15, 1886

Elbert, J.

The court below rendered judgment for the plaintiff upon the pleadings. Was this error? is the only question presented. The answer set up four defenses, which we will consider in their order.

1. In answer to the allegation of the complaint that on the 23d of September, 1880, R. P. McDonald did assign all his property, both real and personal, for the benefit of his creditors, to the plaintiff, the defendant alleges that he “has not and cannot obtain sufficient information upon which to base a belief as to whether, at the time mentioned, or at any other time, one R. P. McDonald assigned all his property for the benefit of his creditors.” The provision of the code (section 57) is that, “in denying any allegation of the complaint, not presumptively within the knowledge of the defendant, it shall be sufficient to put such allegation in issue for the defendant to state, as to any such allegation, that he has not and cannot obtain sufficient knowledge or information upon which to base a belief.” This contemplates a denial of either knowledge or information upon which to base a belief. Of such provisions Mr. Pomeroy says: “The formula prescribed by the statute should be exactly followed, not because there is any value in the form simply as such, but because in no other manner can the defendant satisfy the demands of the code and raise a substantial issue,— an issue which is' not a subterfuge and pretense. * * * He must deny that he has any -knowledge or information, concerning the matter alleged, sufficient to enable him to form a belief respecting it.” Pom. Rem. § 640; Bliss, Code Pl § 326. The denial is objectionable for another reason. It is a denial of the letter, and not a denial of the substance and spirit, of the allegation. The allegation of the complaint is that McDonald assigned all his property, both real and personal, to the plaintiff. Proof that substantially all the property of the assignor was assigned supports the allegation. Burrill, Assignm. § 122. The denial is 'that he assigned all his property, and proof of any piece of property, however insignificant, unassigned, maintains the issue made by the defendant, and satisfies his conscience in making the oath to his answer.. It is a traverse in ipsis verbis, using exactly the language of the allegation traversed, and no more. It is pregnant with the substantial admission of the allegation, the letter of which it alone denies.. Pom. Rem. § 618; Bliss, Code Pl § 332.

In the second paragraph of this defense the defendant denies that on or about the 17th day of April, 1881, or at any other time, he requested the plaintiff to deliver him three hundred and eighty-six thousand two hundred and nine burnt brick at any price whatever. This, also, is evasive, and tenders an immaterial issue. It is not a denial of the allegation of the complaint that on or about the 17th day of April, 1881, the plaintiff, as such assignee, at defendant’s' request, sold and delivered to the said defendant the amount of brick named.

In the third paragraph of this defense the defendant denies “that he agreed to pay the sum of $3,572.43, or to pay any sum, to the plaintiff on any account whatever, ■except as hereinafter shown.” This denial is supposed to have reference to the third defense; and, if of any value, it is as a part of that defense. As an independent denial it is evasive and insufficient. The allegation of which it purports to be a denial is that “the brick delivered amounted to $3,572.43, and were reasonably worth said sum, and defendant agreed to pay said sum therefor, but has not paid any part thereof, except $3,074.79, and there is now due $497.64, with interest from the 17th of April, 1881, at ten per cent.” The requirement of the code is-that “the answer shall contain a specific denial of each allegation in the complaint intended to be controverted by the defendant.” The denial in question is in no sense specific. It is not even as broad as the general issue of non assumpsit at common law, namely: “That the defendant did not undertake or promise in the manner and form as the plaintiff hath complained against him.” It is of the same character as the next allegation, in which the defendant denies that he is indebted to the plaintiff in the sum of $497.64, or in any sum whatever. A denial of indebtedness or of liability, without denying the allegations of fact from which the indebtedness or liability is claimed to have arisen, is a nullity. Pom. Rem. 674; Bliss, Code Pl. § 325.

We have thus examined every allegation of the first defense, and, whether taken singly or together, they constitute no plain, 'direct denial of the facts alleged in the complaint constituting the plaintiff’s cause of action. They are clearly evasive, and leave the clear impression that the defendant was not prepared to deny, under oath, plainly and unequivocally, the facts which constituted the plaintiff’s cause of action. We think the court was justified in treating it as insufficient.

2. In considering the second defense, it will be noticed that most of the allegations are conclusions of law and not well pleaded. The allegation that the assignment of McDonald was not bona fide, and in fraud of the creditors of McDonald, is not pertinent to the issue. The ,'defendant does not allege that he was a creditor of McDonald or held any relation to him that would entitle him to call in question the bona fides of the assignment. Burrill, Assignm. 673.

3. It will be noticed that the third defense interposed by the defendant is by way of recoupment.’ It is defective in several particulars, chiefly in that it alleges á contract with plaintiff, apparently personal, and not in his character as assignee, and in that it fails to allege that it is the same contract under which the brick mentioned in the complaint were delivered to the defendant. We think, however, that the defective pleading is aided by the reply, which assumes and proceeds upon both of the propositions mentioned. The case is substantially within the rule, “If one of the parties expressly avers or confesses a material fact before omitted on the other side, the omission is cured.” Gould, Pl. § 192, p. 154. We think that the third defense and the reply thereto formed an issue which should have been tried, and that the court erred in rendering judgment for the plaintiff on the pleadings. The judgment-of the court below is reversed and the cause remanded for trial, with leave to the parties to amend their pleadings if they shall be so advised. In view of the new trial we notice the fourth defense.

4. In his fourth defense the defendant alleges that R. P. McDonald, the pretended assignor of plaintiff, is indebted to the defendant in the sum of $258.30, with interest, etc., for which sum he prays judgment. If this defense could be allowed, there is no sufficient statement of the nature and character of the indebtedness. We do not understand that in an action by the assignee for goods sold and delivered after the assignment that the defendant is at liberty to plead an indebtedness of the assignor as a set-off. It would be in prejudice of that ratable distribution among all the creditors of the assigned estate contemplated by the assignment. Burrill, Assignm. 556; Bateman v. Connor, 6 N. J. Law, 104. Judgment reversed

Reversed.