133 F. 858 | 8th Cir. | 1904
after stating the case as above, delivered the opinion of the court.
It is assigned as error that the court refused to permit the defendant to amend his answer, but, as the record does not disclose the nature of the amendment which was proposed, the presumption is that the refusal was right. Rulings in respect of the amendment of pleadings or process are largely within the discretion of the trial court, and constitute no ground for reversal unless a gross abuse of that discretion is shown. Rev. St. § 954 [U. S. Comp. St. 1901, p. 696] ; Range v. Union Pacific R. Co., 62 C. C. A. 48, 126 Fed. 338; Sawyer v. Piper, 189 U. S. 154, 23 Sup. Ct. 633, 47 L. Ed. 757. By the terms of the contract sued upon Rucker sold and assigned to Bolles an interest in any judgment which the former might recover in a suit then pending against one Wheeler, and it was stipulated that Rucker should retain the control and management of the suit, and should prosecute it to a final determination at his own proper costs, subject to a right reserved by him to effect a compromise and settlement with Wheeler for a sum not less than $300,000. Upon the trial, after the plaintiff, by the introduction of the contract and other evidence, had established a prima facie case against the defendant, the latter sought to prove by parol evidence that the contract did not express the actual agreement between the parties, and liad been purposely so written by them as to. conceal their real purpose; that when the contract was entered into Wheeler was prosecuting a suit against Bolles and others; that it was in fact agreed that Rucker, in addition to selling and assigning to Bolles an interest in any judgment which might be obtained in the suit against Wheeler, should not compromise that suit, but should permit Bolles to control its prosecution as a means of destroying the credit of Wheeler, and disabling him from prosecuting his suit against Bolles and others, thereby forcing its abandonment; and that in fact it was agreed that the money paid and to be paid by Bolles to Rucker under the contract was to be used by him in defraying the expense of so prosecuting and maintaining his suit ag'ainst Wheeler as to accomplish Bolles’ wrongful purpose. The court excluded this evidence, and that ruling is assigned as error. It may be conceded that, had the contract been so written as to express what the defendant sought to prove was in fact in the minds of the parties, it would have been champertous and void,
Under the plea of non assumpsit at common law it was admissible to give in evidence any matter which showed that no cause of action existed at the commencement of the action, either because the contract was originally void or because its obligation had been subsequently discharged by payment, release, or otherwise; and, in consequence, defenses of which the pleadings gave no notice were not infrequently presented at the trial. The injustice resulting from this practice was remedied in England by the rules of Hilary Term, 4 William IV (1 Chitty on Pleadings [16th Am. Ed.] *pp. 492, 497, 506), and it is avoided in the states which have adopted the Reformed Code of Civil Procedure by a provision which declares literally or in substance: “The answer of the defendant shall contain: First, a general or specific denial of each material allegation in the complaint intended to be controverted by the defendant; second, a statement of any new matter constituting a defense or counterclaim.” There is such a statute in the state of Colorado. Mills’ Ann. Code, § 56. Whatever operates by way of confession and avoidance, as distinguished from denial, is new matter within the meaning of this provision. It includes everything outside of the material statements of fact in the complaint which operates to avoid their legal effect, but not to impugn their truth. To be provable by the defendant, the new matter must be specially pleaded, so that the plaintiff may be informed of the defense, and may prepare to meet it. In an action upon a contract a defense which expressly or impliedly admits the making of the contract and seeks to show that it is in contravention of public policy and void by reason of some fact outside of the statements in the complaint is based upon new matter, which cannot be proved by the defendant unless it is pleaded. Pomeroy’s Code Remedies (3d Ed.) §§ 691, 692, 708; Bliss on Code Pleading (3d Ed.) §§ 327, 352; Milbank v. Jones, 127 N. Y. 370, 28 N. E. 31, 24 Am. St. Rep. 454; Finley v. Quirk, 9 Minn. 194 (Gil. 179), 86 Am. Dec. 93; Dodge v. McMahan, 61 Minn. 175, 63 N. W. 487; Denton v. Logan, 3 Metc. (Ky.) 434; Casad v. Holdridge, 50 Ind. 529; Riech v. Bolch, 68 Iowa, 526, 27 N. W. 507; Moore v. Ringo, 82 Mo. 468; St. Louis, etc., Ass’n v. Delano, 108 Mo. 217, 18 S. W. 1101; Cummiskey v. Williams, 20 Mo. App. 606; Atchison & Nebraska R. R. Co. v. Miller, 16 Neb. 661, 21 N. W. 451; Buchtel v. Evans, 21 Or. 309, 28 Pac. 67; Ah Doon v. Smith, 25 Or. 89, 34 Pac. 1093; Maitland v. Zanga, 14 Wash. 92, 44 Pac. 117; Sharon v. Sharon, 68 Cal. 29, 8 Pac. 614.
The Supreme Court of Colorado does not seem to have considered the immediate question presented in this case, but that the general rule prevailing in other code states respecting the pleading of new matter has been approved by that court is shown in De Votie v. McGerr, 15 Colo. 577, 23 Pac. 980, where it was held that an estoppel in pais cannot be proved under the general or specific denial provided by the Code, but must be specially pleaded as new matter to be available as a defense. The Court of Appeals of that state has also held that evidence of additional facts showing that the contract sued upon is
The decision in Oscanyan v. Arms Co., 103 U. S. 261, 266, 26 L. Ed. 539, which is especially relied upon by the, plaintiff in error, was partly rested upon what has since proved to have been an erroneous view of the defenses admissible under a general denial in the state of New York (Milbank v. Jones, supra), but in other respects it is entirely consistent with the recognized rule in code pleading that, if the facts which render the contract sued upon illegal or void are not disclosed by the plaintiff’s pleadings or evidence, they cannot be shown except according to the rule which entitles the plaintiff to notice of the defenses intended to be interposed, and restricts the evidence to matters presented and put in -issue by the pleadings. Greenhood on Public Policy, 125; Milbank v. Jones, Buchtel v. Evans, Ah Doon v. Smith, and Maitland v. Zanga, supra. In that case the plaintiff’s counsel in the opening statement to the jury fully and deliberately admitted the existence of facts which necessarily rendered the contract void as forbidden by public policy. That admission was as binding upon the plaintiff as if it had been made in his pleadings or evidence, and, as no injury could be done to him by accepting and acting upon his deliberate admission, made in open court, the character of the defendant’s answer was not controlling. Handy v. St. Paul Globe Publishing Co., 41 Minn. 188, 42 N. W. 872, 4 L. R. A. 466, 16 Am. St. Rep. 695. In the present case the contract as set forth in the complaint and produced in evidence by the plaintiff was upon its face apparently valid, and there was no suggestion of any fact rendering it invalid or void, either in the allegations of the complaint or in the plaintiff’s evidence. The defendant, without having laid any foundation therefor in his answer, sought at the trial to establish the invalidity of the contract by giving evidence of facts which did not tend to controvert those alleged and proved by the plaintiff, but confessed their truth, and tended to avoid their legal effect. This he was not entitled to do. Eor another reason this evidence was not admissible. Where a written contract, entered into without fraud, accident, or mistake, purports upon its face to be a complete memorial of the whole agreement, the conclusive presumption is that the parties have written into the contract every material item and term of their engagement, and it is not permissible to contradict, vary, or add to its terms by parol evidence. Union Selling Co. v. Jones, 63 C. C. A. 224, 128 Fed. 672; Kilby Manufacturing Co. v. Hinchman-Renton Fire Proofing Co. (C. C. A.) 132 Fed. 957; Montgomery v. Ætna Life Ins. Co., 38 C. C. A. 553, 558, 97 Fed. 913; McKinley v. Williams, 20 C. C. A. 312, 319, 74 Fed. 94; Fitzgerald v. Burke, 14 Colo. 559, 23 Pac. 993. The evidence which was excluded was clearly in contradiction of some of the express terms of the written contract, and tended to insert new terms therein. It did not, as claimed, relate primarily to the nature of the consideration moving to the defendant, but to the terms and nature of his engagement. If they were as stated in the contract, there was no element of invalidity in any part of the transaction.
In its charge the court, in effect, stated three propositions to the jury: (1) The tender of $10,000 to the defendant just prior to the commencement of the action was sufficient in point of time and otherwise, and entitled the plaintiff to a verdict for $75,000, less the amount of the tender and of an admitted credit of $5,000, unless the defendant had established the fourth or fifth defense in his answer. (2) If in November, 1892, the plaintiff elected not to make any additional payment under the contract, renounced all rights thereunder, and authorized the defendant to compromise and settle with Wheeler upon any terms satisfactory to himself, and upon the faith thereof the defendant made a compromise and settlement for a less sum than he would otherwise have done, the contract was entirely rescinded by mutual agreement and the verdict should be for the defendant. (3) If what occurred in November, 1892, was that the plaintiff merely elected not to make any additional payment under the contract, that was a renunciation or waiver of the right which otherwise could have been perfected by a timely payment of the $10,000, and the plaintiff would be entitled to a verdict for the amount of the original payment of $27,500, with interest, less the admitted credit of $5,000. The jury returned a verdict for the plaintiff conforming to the third proposition, which was necessarily a finding that there had been no complete rescission of the contract, and that what occurred in November, 1892, was that the plaintiff merely elected not to make any additional payment. It is objected that the third proposition was not within the issues, that the complaint did not state a case for the recovery of the original payment of $27,500, that the fifth defense did not admit of a construction that would render such a recovery permissible, and that there was no evidence to sustain it. The objection rests upon a misconception of the pleadings and evidence and of the duty of the jury. The contract sued upon is an entirety, and relates to a single matter. While the rights of the plaintiff are not the same in each of the contingencies provided for, they are in each restricted to the proceeds of the defendant’s suit against Wheeler, and they vary only in respect of the extent to which the plaintiff is to share therein. The complaint sets forth the entire contract, alleges its execution, the original payment of the $27,500, the compromise and settlement of the suit against Wheeler, and the receipt by the defendant of a large sum thereunder. At the trial these facts were all established without contradiction, and all of them were as essential to a right to enforce
Whether there was any evidence to sustain either of the fourth and fifth defenses rested entirely upon the personal testimony of the parties in which they gave opposing versions of a conversation between them in November, 1892. The defendant testified that in that conversation the plaintiff said that he did not intend to make any further payment, but did intend to throw up the contract, and lose what he had paid; that he had obligated himself to Wheeler to obtain a settlement of the suit; that the defendant could go on and settle with Wheeler on any terms satisfactory to himself; and that, being released from the contract, the defendant could afford to settle on better terms than otherwise. The defendant further testified that, acting upon the faith of the plaintiff’s statement, he.proceeded to make and did make a compromise and settlement for a much less sum than he otherwise would have done. The plaintiff, while admitting that the conversation related to the suit against Wheeler, to his financial worth, and to what could be settled by him, denied every part of the statement attributed to the plaintiff in the defendant’s testimony. Neither the court in instructing the jury nor the jury in determining what its verdict should be was required to act upon the assumption that one of the two opposing versions of this conversation was entirely true and the other entirely untrue. The thing to be done was to extract the truth from them, and as one means to
There are other assignments of error, but no useful purpose would be served by discussing them. They have been attentively considered, and have been found untenable.
The judgment is affirmed.