Snodgrass v. Andross

19 Or. 236 | Or. | 1890

Thayer, C. J.,

delivered the opinion of the court.

It appears Jrom the bill of exceptions settled and signed in this case that, the appellant, at the trial of the action in the circuit court, gave testimony tending to prove the allegations contained in Ms complaint and thereupon rested; that the respondents then offered testimony contradicting that given by the appellant, to which the appellant’s counsel objected upon the grounds that it was irrelevant, immaterial, incompetent and contrary to the admissions of respondents in their pleadings. Said counsel also objected to the respondents giving evidence tending to prove the allegations of new matter contained in their answer. The circuit court overruled these various objections and the appellant’s counsel saved exceptions to the rulings, which present the only questions for our consideration herein.

The theory of the appellant’s counsel is, that the defenses of payment, settlement, arbitration and award and payment of the award, set forth in the respondents’ answer to the complaint in the action, are inconsistent with their denials in the answer. He also claims that the respondents’ admission in the answer that they received the sheep under the agreement alleged in the complaint to have been entered into between the parties about April, 1883, was inconsistent with their denial that they agreed to extend the time for the furnishing of the 500 head of ewes. The counsel’s contention is, that a defense in the nature of a confession and avoidance cannot be united with an absolute denial of the matter which it is intended to answer. Where a defendant in an answer to a complaint positively denies the facts alleged therein from which the plaintiff claims an indebtedness against him, and in the same answer pleads payment of the debt, an accord and satisfaction of the claim, or that it is barred by the statute of limitations, or any other defense which in effect confesses that the debt had existed against him, such pleas have the appearance of being inconsistent with the denial. The Code, however, permits a defendant to plead as many defenses as he may have; and unless the court can see from an inspection of them that they are necessarily inconsistent with each other and cannot all be true, it has no authority to interfere with the party’s right to unite them in the same pleading. In this case tbe circuit court could not have determined that the defenses contained in the answer were not all true. The respondents may never have agreed to pay the appellant for herding, feeding and taking care of the sheep and lambs delivered to them and yet they may have paid him for so doing. They may have agreed with the appellant to submit his said claim to arbitration and have paid the award made by the arbitrators thereon without having been originally liable for its payment.

We are of the opinion that the circuit court committed no error in admitting the testimony excepted to by the appellant’s counsel.

The judgment appealed from will be affirmed.