Paddock v. Jones

40 Vt. 474 | Vt. | 1868

The opinion of the court was delivered by

Wilson, J.

This is an action on a promissory note. The questions presented for adjudication arise upon a general demurrer to the plaintiff’s replication to the defendant’s plea in bar. The plea admits the making of the note and the transfer of it to the plaintiff. It sets up as matter of defe'nse, the alleged agreement to extend the time of payment, which amounts to nothing more than matter of excuse for not paying the note according to its terms. This being the nature of the plea, the replication de injuria is allowable and sufficient under a general demurrer, even at common law. The allegations traversed by tlie replication are, first, the agreement to extend the time of payment, and second, notice thereof to the plaintiff. Both of these points are put in issue by the replication, but duplicity in a replication is aided, unless the defendant demur specially, pointing out the particular defect. But we think this replication is authorized by section 16 of chapter 33 of the general statutes. That section provides that “ the party against whom matter is specially pleaded in confession and avoidance in answer to matter by him antecedently alleged, may, by a general form of denial, traverse and put in issue all the material facts so pleaded by the other party.” This statute has altered and modified the common law rule of pleading in respect to the matters referred to, so that the plaintiff is not compelled to confine himself in his replication to a denial of a single material fact, as at common law, but may deny all the material facts alleged in the plea against him, and put the defendant upon the proof of them. Austin v. Chittenden, 32 Vt. 168. In this case the agreement to extend the time of payment, with notice thereof to the plaintiff, is the special matter set up in the plea in excuse of the breach of contract on which the plaintiff seeks to recover. The replication de injjuria is a traverse of, and puts in issue all the material facts alleged in the plea; it is a sufficient general form of denial under the statute, and we think it would be sufficient under the statute even on special demurrer.

2. It is insisted by the plaintiff’s counsel that the plea is bad, because it does not appear that the defendant is a party to the agreement set up, nor that the consideration moved from him, nor that the agreement was entered into for his benefit. As to this objection, it is obvious that the plea is defective in form, but on the whole, we think the law would imply that agreement was made between the parties to the note at that time, and on this ground we hold the plea is in this respect sufficient on general demurrer.

It is further claimed by the plaintiff’s counsel that the plea does not show a sufficient consideration for the alleged agreement. The plea alleges that the agreement was made “ in consideration of certain valuable securities then placed in their hands as collateral security for the payment of said note,” which we think is sufficient on general demurrer. The demurrer to the replication affects the plea to the same extent as if the plaintiff had demurred to it generally. By a general demurrer the plaintiff would admit they were “ valuable securities ” placed in the hands of the owners of the note for the purpose named in the plea. If the plaintiff would take advantage of any formal defect,' he should have demurred specially.

The judgment of the county court is reversed and the cause is remanded.