Spence v. Spence

| Wis. | Jun 15, 1863

By the Court,

DixON, C. J.

We are of opinion that the answer, as it now stands, is good, and that the evidence offered should have been received under it. Certainly, the denial that the defendant received the plaintiff’s money for the purpose of buying and paying for the land in controversy in the name of the plaintiff, or that he was instructed to do so, or used the money in that way, is sufficient. It may be, as seems to have been held by the circuit court, that it involves an affirmative implication that the defendant received the money, and is so far a negative pregnant. But it is a negative pregnant very harmless in its nature. It does not maintain, at most not fully, the pleading of the adverse party. Gould’s Pl., VII, § 40. The gist of the action is, to secure the title to the land alleged to have been fraudulently appropriated by the defendant, and not to recover the money. To maintain his action the plaintiff must prove both the delivery of the money and the purpose for which it was delivered ; and if he fails in either, it is an end of the suit. Hence he cannot complain, should the defendant admit the receipt of the money, but take issue upon the residue of the transaction, or deny the fraudulent appropriation of the. title.

And the allegation that the defendant took the title without the knowledge or consent of the plaintiff,' seems equally well traversed. It is possible that the pleader might,* with attention, have framed a more point blank negative, yet the whole answer contradicts it. The two cannot stand together. The averment that all negotiations for the purchase of the lands, whether conducted by the plaintiff or the defendant, were for the benefit of the defendant, and with the express understanding that the land was bought for him, is a plain denial.

But there is some refinement upon this part of the answer. It is said that the words “ express understanding ” mean nothing — that they are of no force as showing or tending to show that there was a contract or agreement between the parties to the effect stated. We differ with plaintiff’s counsel upon this point also. , We think them, in this connection, an equivalent expression for “ express, contract ” or “ express agreement.” Such was the undoubted intention of the pleader; and when the language fairly admits it, it is to be construed in the sense in which it was employed by him. All technical rules of pleading are abolished. “ In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties.” R. S., ch. 125, sec. 21. Substantial justice between these parties demands that the defendant, as well as the plaintiff, should be heard upon the merits of the controversy, and the answer, as well as the complaint, is to be liberally construed to that end. If there be any defect in this part of the answer, it is that the understanding or agreement of the parties is not more fully and specifically stated, the remedy for which was by motion. R. S., ch. 125, sec. 22.

But suppose we mistake the legal effect of the answer: then we think the amendment should have been allowed. It could not have taken the plaintiff by surprise, or if it had, the cause might have been continued upon the payment of proper costs. The amendment proposed was merely a more detailed and particular statement of a defense, the material facts 'of which already appeared.

Judgment reversed, and cause remanded for further proceedings according to law.