16 Colo. App. 509 | Colo. Ct. App. | 1901
The plaintiff company brought this suit to recover on an account for merchandise sold and delivered by it to the defendant. The answer admitted the purchase of the goods
The chief ground relied upon in support of the motion to strike was “ that said replication sets forth a new and distinct cause of action from the complaint filed herein, and is a departure from the cause of action set forth in said complaint.” What constitutes a departure in pleading has been well settled by former adjudications of this court. In Moyle v. Bullene, 7 Colo. App. 312, it was said: “ A departure in pleading is said to be when a party quits or departs from the case or defense which he has first made, and has recourse to another. It occurs when the replication or rejoinder, etc., contains matter not pursuant to the declaration or plea, etc., which does not support and fortify it. Authorities in support of the proposition are almost innumerable.”
In Railroad Co. v. Cahill, 8 Colo. App. 164, the court said, “ A departure is an abandonment of the cause of action as stated, in some essential particular, and the substitution of something materially different * * * The effect of a depar
In Lebanon M. Co. v. Con. Rep. M. Co., 6 Colo. 378, it was said, “ The replication contains a statement of specific facts, which if true show that notwithstanding the facts alleged in the answer, the defendant is not entitled to recover. These statements of the replication do not constitute a departure from the allegations of the complaint, and whether the}- be denominated new matter or matter in avoidance, their insertion is permissible under the Code, which makes provision therefor.” This language is directly applicable to the principle here involved.
We must not be understood as intimating an opinion as to what facts would be sufficient or necessary in this case to create or sustain the asserted right of rescission by plaintiff. That question is not presented on this appeal. We only hold that the allegations of the replication are broad enough to admit proof of facts which might create such right.
The judgment will be reversed.
Reversed.