181 Iowa 199 | Iowa | 1917
“As a further consideration, it is hereby mutually agreed that in the event twenty-five per cent, of the dealer’s increase in trade, during a period of thirteen months from the date of this order, does not equal the sum of $400, the said piano company Avill make up the difference between said sum and twenty-five per cent, of the actual increase in trade. It is expressly understood that this provision is effective only when the dealer makes satisfactory proof of the ■deficiency herein referred to, and complies in every respect Avith the terms of this order given to the said piano company, as well as promptly meeting his obligations Avith reference thereto.”
The plaintiff alleged the making of the contract, including portion thereof as quoted, and that he had fully complied with all its conditions; that his business had not increased during the 13 months of the piano contest as Avarranted, but had actually decreased; and he prayed for judgment in the sum of $400. The defendant, in the first division of the answer, admitted haAdng entered into the contract, but denied each and every other allegation; in the second division, it alleged that no proof of deficiency in the increase
The plaintiff moved to strike the third division from the answer, for that (1) the allegations therein did not constitute a defense; (2) the contract did not require plaintiff to follow the suggestions and instructions mentioned as a condition precedent to compliance with the assurance of trade clause; (3) the defense was sham in that it failed to specify what plaintiff ought to have done which he did not do, or any breach in the performance of the contract by plaintiff. This motion was sustained, and, as we think, rightly so. The plaintiff had pleaded the contract and full performance, as permitted by Section 3626 of the Code, 1897, and Code Section 3628 expressly declares that, in controverting such allegation of performance, “it shall not be sufficient to do so in terms contradictory of the allegation, but the facts relied on shall be specifically stated.” The only portion of the third division of the answer which could be claimed to be at all specific is that which avers failure to comply with the instructions and suggestions of the books named. But there was no intimation as to what these books contained, save as found in their titles. This being so, it needs hardly to be said that, inasmuch as the facts were not “specifically stated,” in order to have put in
The bringing of suit on a contract necessarily is on the theory of performance on the part of plaintiff; and, instead of exacting allegations concerning each detail, a general assertion of complete performance is deemed to cover all separately, and the defendant in his ansAver is required to point out specifically the particular instances of delinquency on plaintiff’s part, and aver the facts Avith reference thereto. This simplifies the issues, and avoids the incumbrance of the record with needless reference to portions of the contract not draAvn into the controversy. The third diAÚsion of the answer did not direct attention to the facts, but pleaded nonperformance in terms nearly as general as performance had been alleged in the petition. It should have pointed out specifically wherein plaintiff had not done as he had undertaken, and thereby particularized the issues, to the end that the parties might have known in advance the precise questions involved. The third division of the ansAver Avas rightly stricken.
III. The court’s ruling in permitting the plaintiff to
The judgment is — Affirmed.