62 P. 377 | Or. | 1900
delivered the opinion.
This is a proceeding against a garnishee, wherein the appellant, the Blake-McFall Co., was cited to appear and answer certain allegations and interrogatories touching its indebtedness to the defendant, George F. Robertson. Among others, it is alleged “that the plaintiff is informed and believes that the said garnishee, at the time the said execution was levied as aforesaid, was indebted to the defendant, for work and service performed by the defendant at the request of said garnishee between the -day of-, 189 — , and the date of said levy, in a large sum of money, the exact amount of which is unknown to this plaintiff, but sufficient to satisfy said decree.” By stipulation of the parties this allegation was considered specifically denied, and upon the issue thus formulated they went to trial. The bookkeeper of the company was called in behalf of the plaintiff, and testified, in substance, that he knew the defendant, George F. Robertson, and that he was and had been in the employ of the company for eight years immediately prior thereto, at a salary of $100 per month. Upon cross-examination the company .attempted to show that it was not indebted to defendant, Robertson, on May 17,1898, the date of the levy of the execution, in any sum, and that he had then received all sums of money earned by him while
It is urged by counsel for respondent that the testimony was not admissible under the pleadings, because it tended to prove payment, — a fact the company had neither alleged nor set up in its answer to said allegations, — and that such fact was matter of defense, which should be affirmatively alleged before it could be proved. The question was presented as one of pleading purely, and we will so treat it. Generally speaking, payment cannot be shown in defense of an action under the traverse alone, but must be specifically alleged as matter in avoidance, in order to be available : Benicia Agl. Works v. Creighton, 21 Or. 495 (28 Pac. 775, 30 Pac. 676); Clark v. Wick, 25 Or. 446 (36 Pac. 165); McKyring v. Bull, 16 N. Y. 297 (69 Am. Dec. 696). There seems, however, to be a well-settled exception to this rule. Where an allegation, not stated as a conclusion of law, is so framed that an issue is presented by the traverse upon the fact of the amount due, proof of payment is admissible without an affirmative plea in the nature of a further defense. Thus, in Quin v. Lloyd, 41 N. Y. 349, the complaint stated the amount of defendant’s indebtedness to plaintiff for services performed, without showing the value or extent thereof, which was followed by an' allegation to the effect that the defendant, on a day named, became indebted to plaintiff in the sum of $333.07, being the balance remaining due after sundry payments by the defendant to the plaintiff; and it was held, under a denial of the allegations, that the defendant was entitled to prove payment to the
Reversed.
