Waddle v. Morrill

26 Wis. 611 | Wis. | 1870

Cole, J.

The testimony of the witness Ayers proved an estoppel beyond all question. The only point in the case is, whether evidence of an estoppel was admissible under the pleadings. We think it was.

The action was to recover the possession of personal property under a chattel mortgage. The plaintiff is an assignee. The defendant set up in the answer that the note and mortgage were usurious. To avoid this defense, the plaintiff offered to prove, and was permitted to prove by the witness Ayers, that the defendant induced or requested the witness to purchase the note and mortgage from one Gibson, without disclosing the fact that they were tainted with usury, and that the witness did purchase and sell them to the plaintiff with the knowledge and assent of the defendant, and that neither the witness nor the plaintiff had any knowledge that the securities were usurious at the time of purchase. Now it is claimed that this evidence should have been excluded. The principle relied on in support of this position is that which requires a party relying upon an estoppel, to set out in his pleading the facts upon which he relies as constituting the estoppel; in other words, that he must plead the estoppel in order to make evidence of it admissible. This as a general rule is undoubtedly true, but obviously it can only apply where the party has an opportunity to plead the estoppel. But the plaintiff had no opportunity to plead the estoppel here. The defense was usury. The plaintiff had no right, under our present practice, to put in a replication stating the facts constituting the estoppel. That system of pleading is abolished. The estoppel could not, therefore, be pleaded, and from the necessity of the case could be proven, as it was upon the trial of this cause. This is the only question in the case deserving-attention.

By the Court. — The judgment of the circuit court is affirmed. •