GRIFFITH v. WRIGHT. Supreme Court of Washington. 1899. 21 Washington, 494. The opinion of the court was delivered by REAVIS, J.: Respondent (plaintiff) commenced an action to recover judgment on nine promissory notes, executed by appellant, for the sum of $25 each, together with 8 per cent. interest from the date of execution of the notes. The usual allegations were made which entitled respondent to her judgment upon the notes. Appellant answered, admitting the allegations of the complaint, but set up as an affirmative defense, and by way of counterclaim, a note in the sum of $388, executed and delivered by respondent to Mary J. Wright, and the assignment of such promissory note by Mrs. Wright to him before the commencement of the action. Plaintiff replied to the affirmative defense of the answer in the following form: "Plaintiff denies that the note mentioned, described, and set forth was for a valuable consideration, or for any consideration whatever,” and also denied the assignment of the note before the commencement of the action. Upon the trial the affirmative was upon the appellant, who proved the assignment, and then rested; whereupon respondent tendered testimony to show a want of consideration of the note set forth in the counterclaim by defendant. Counsel for defendant objected to the testimony offered, on the ground that evidence of such defense-want of consideration-could not be given under the denial set up in the reply; that such defense must be set up as new matter; and that the denial in the reply was a conclusion of law, and raised no issue of fact. The court sustained the objection, and thereupon counsel for plaintiff asked for leave to amend the reply upon the trial, which leave was granted. The reply was amended instanter, and alleged, by way of new matter and defense, "that there was no consideration whatsoever for the making or delivery of the promissory note set forth in said. answer and counterclaim." Thereupon the record shows that counsel for defendant addressed the court as follows: "This reply is defective, just as much as the other was; doesn't state the facts; pleads a conclusion of law. The only difference between this and the other is that it is alleged as new matter, and not under a general denial. Now, this is as defective as the other in not stating the facts wherein the failure of consideration consists. That is what we want. We want some notion of what their defense is to this note, so that we can frame our answer; so that we can get our evidence in." The court remarked, "Objection overruled." A question intervened by plaintiff, but before it was answered, counsel for defendant moved to make the amended reply more definite and certain, so that the reply should state in what the consideration failed in the making and delivery of the note, and that the amended reply should allege facts, and not a conclusion of law. This motion was oral, but it was stipulated that it be considered filed. The motion was overruled. Defendant then prayed a continuance on the ground of surprise, and being unprepared to meet the defense at that time. The continuance was refused, and the case proceeded to trial. The testimony produced at the trial is conflicting, and, in view of the principal error assigned here, it will be unnecessary to refer to it further. The rule with reference to pleading a want of consideration is very well stated in 4 Enc. Pl. & Prac. p. 946: That, if the con " 66 * the want tract in suit imports a consideration, of consideration cannot be shown under the general denial, but must be pleaded. If, on the other hand, the contract in suit does not import a consideration, thereby making it necessary for the plaintiff to allege a consideration, want of consideration may be shown under the general denial." And we think, also, that the better rule as to the manner of stating the want of consideration is to state the facts showing the want of consideration. We are aware, however, that the authorities are at variance here, and, while the formula alleging that a promissory note is without consideration is justly subject to the criticism that the statement may be a conclusion of law, yet it may also be construed as an issuable fact where the parties go to trial, and place such construction upon it. Chamberlain v. Railroad Co., 15 Ohio St. 225; Pom. Code Rem. (3d Ed.) § 602; College v. Bryan, 50 Iowa, 293. If defendant is in doubt a motion to make more definite and certain by pleading the facts which show the want of consideration should be made. The note imported consideration. The want of consideration is, therefore, an affirmative defense, and the facts should be stated sufficiently to apprise the opposite party of them before the trial. It is, however, maintained by counsel for respondent that the first objection to the amended reply made by appellant was in the nature of a general demurrer to the allegation of want of consideration, and therefore the motion was too late. But it seems hardly fair to put such a construction upon the objection. Plaintiff was permitted to amend her reply in the midst of the trial, and the remarks made by counsel for appellant immediately preceding the motion to make more definite and certain should be construed with reference to that motion. We think the motion should have been granted, and that defendant was entitled to it as a matter of right. An inspection of the testimony produced at the trial very fairly illustrates the difficulty under which the defendant was placed in meeting the general allegations of want of consideration for the note. For the error in this regard the cause is reversed, and remanded for a new trial.1 GORDON, C. J., and ANDERS, DUNBAR, and FULLERTON, JJ., concur. 1 Accord: Pastene v. Pardini (1902), 135 Cal. 431; Cox v. Sloan (1900), 158 Mo. 411; Sharpless v. Giffen (1896) 47 Neb. 146; Weller v. Colorado Nat. Life Assur. Co. (1911), 49 Colo. 508; Ryan v. Sullivan (1911), 143 N. Y. App. Div. 471. Failure of Consideration, on the other hand, is new matter, since it admits an originally valid contract which is alleged to have been rendered invalid by reason of the subsequent failure of the consideration. Greer v. Latimer (1896), 47 S. C. 176. SECTION 3. AFFIRMATIVE DEFENSES. JACOBY v. JAMES. Appellate Division of the Supreme Court of New York. 1910. 136 New York Appellate Division, 431. CLARKE, J.: The demurrer to the second partial defense was properly overruled, and the demurrer to the fourth de fense was properly sustained. The answer alleges as follows: "And for a third defense, and in justification of the statements contained in the letter complained of, defendant alleges (6) that the matter complained of, although never published or circulated by this defendant, was and is substantially true." And it then proceeds to set up certain parts thereof as true. This is pleaded as a complete defense, and the truth is a defense in an action for libel, and justification means a plea of the truth; but the plea of justification is a plea of confession and avoidance, and must admit the publication of the alleged defamatory words. This the defense does not do, but specifically alleges "that the defendant never published or circulated" the alleged libel. The defense is, therefore, bad; and it is also bad because the justification is not as broad as the libel. The demurrer thereto was, therefore, improperly overruled.1 1 Accord: State ex rel. v. Delmar Jockey Club (1906), 200 Mo. 34, 66. Denials incorporated into Affirmative Defenses. On this subject the Appellate Division of the Supreme Court of New York said, in Haffen v. The Tribune Association (1908), 126 N. Y. App. Div. 675: "A denial, either general or specific, is not the statement of any new matter and as such is improperly included in an affirmative defense, unless it be necessary to make such new matter complete in order to constitute a defense, inasmuch as it is not a confession or avoidance of the matters alleged in the complaint. A general denial in an affirmative defense is always improper. A specific denial may or may not be, depending upon the new matter pleaded. Each separate defense pleaded must be complete in itself and contain all that is necessary to answer the whole cause of action, or that part of it which it purports to answer. If the new matter pleaded is not complete without a specific denial, then it may be properly included. When an affirmative defense contains a general denial, its validity cannot be tested by demurrer. Α specific denial cannot, however, be included in an affirmative defense unless it is necessary to make the defense complete and available, and if improperly included may be stricken out on motion." To the same effect see Wiener v. Boehm (1908), 126 N. Y. App. Div. 703. CINCINNATI TRACTION COMPANY v. FORREST. Supreme Court of Ohio. 1905. 73 Ohio State, 1. SPEAR, J.: In her petition the plaintiff, as cause of action, alleged that she was a passenger on a street car on the track of the company's line in Cincinnati; that desiring C. P.-27 to alight at the corner of Findlay and Vine streets she signalled the conductor to stop at that point; that, in response to said signal, thereupon the car did stop at that point; that she started to alight from the car, when, just as she was about to step from the running board on to the ground, the conductor negligently, and before she was able to alight from the car, signaled the car to go on, and thereupon the motorman started the car, all before plaintiff was able to alight from the same to the ground and while she was in the act of so alighting; and thereupon the car so suddenly starting threw plaintiff to the ground before she was able to alight from the same, all without fault and negligence upon her part, and wholly by reason of the negligence of the conductor and motorman, who were in charge of the operation of the car and operating the same for the defendant company; she was violently thrown upon the ground and badly injured and bruised; that her left arm was broken, and that she suffered great pain and injury therefrom, and loss of time. The answer of the company admitted the allegation that it is a corporation organized under the laws of Ohio, and, excepting this, denied each and every allegation in the petition contained. The issue thus made was a simple one. Did the accident happen by reason of the negligent starting of the car while the plaintiff was in the act of alighting from it? If it did, then she was entitled to recover. If it did not, she was not. It is true that the petition contained an averment that the accident occurred without fault or negligence on the part of the plaintiff and that this was denied by a general denial, but such denial was not the equivalent of an allegation of contributory negligence, because the entire incident itself as pleaded was denied. The element of contributory negligence could not, in the nature of things, become a feature of an event which did not occur at all. From this it follows that there was no issue in the pleadings respecting contributory negligence. Contributory negligence on the part of a plaintiff implies negligence on the part of the other party. It cannot exist. without it. It is the want of ordinary care by a person injured by the negligence of another, concurring with such negligence and thus contributing to the injury as a proximate cause. See 7 Am. & Eng. Ency. Law, 371; Montgom |