DENNISON v. DENNISON.

SUPREME COURT, GENERAL TERM, NEW YORK, JANUARY, 1854.

[9 Howard Practice Reports, 246.]

THIS is an appeal from an order made at special term held by Justice CRIPPEN, at Cortland, in July, 1853. The plaintiff made a motion to strike out certain portions of the amended answer to the complaint, on the ground of redundancy, &c., which motion was granted, with $10 costs. Defendant appeals.

By the Court-SHANKLAND, J. The defendant commences his answer by a general denial of each and every allegation in the complaint; and then goes on to deny specifically nearly all of the allegations in detail. This he is not authorized to do by the Code. Section 149 allows a defendant to elect whether he will answer by a general or a specific denial, and having elected, he is bound by it. cannot answer in both modes. The general denial puts in issue every allegation of the complaint as fully as the specific denial could. The specific denials were unnecessary, and therefore redundant. The learned justice did right in striking out those specific denials.

The order appealed from is affirmed, with $10 costs.1

1 Woskett v. Brown, 13 Ind. 83; Board v. Hill, 122 Ind. 215; De Forest v. Butler, 62 Iowa, 78; School District v. Holmes, 16 Neb. 486; Lippincott v. Goodwin, 8 How. Pr. 242; Cruikshank v. Press Co., 32 N. Y. Misc. Rep. 152 Accord.

But see Homan v. Byrne, 14 N. Y. W. Dig. 175. - ED.

CHAPTER VII.

REPLIES OR REPLICATIONS.

S. G. BABCOCK v. THE FARMERS' AND DROVERS' BANK.

SUPREME COURT, KANSAS, JANUARY TERM, 1891.

[46 Kansas Reports, 548.]

OPINION by GREEN, C.: The Farmers' and Drovers' Bank sued the plaintiffs in error in the district court of Kingman county, upon a promissory note for $1776.50. S. G. Babcock answered, admitting the execution of the note, and set up the affirmative defence that the note was void for want of consideration; that he had, at different times and in different sums, borrowed money from the Farmers' and Drovers' Bank, and had agreed to pay usurious interest for the use of the money so borrowed; that the whole sum of such usurious interest agreed to be paid by him amounted to the sum stated in the note sued on; and that this note was executed for the usurious interest over and above the legal rate of interest on the various sums loaned to him. This answer was verified, and before the trial the district court made an order permitting the defendants below, Alexander and Culver, to adopt the pleading filed by Babcock as their answer. No reply was filed by the plaintiff below to this answer. The defendants asked for judgment upon the pleadings, which was overruled, and the court ordered the case to be tried, without a reply to the answer, over the objection of the defendants; a jury was impaneled and sworn, and the plaintiff introduced its note in evidence, which was objected to. The defendants then offered in evidence the verified answer filed by Babcock, which was objected to, and the trial court sustained the objection. No other evidence was offered. The court instructed the jury to return a verdict for the plaintiff for the amount due on the note sued on. A verdict was returned for the sum of $1952.37, and a judgment was rendered for that amount, in favor of the plaintiff below. The plaintiffs in error bring the case to this court.

It is claimed that the answer of the defendants below contained such material allegations of new matter or affirmative defence as required a reply from the plaintiff to put the same in issue, and, having failed to reply, it admitted the same to be true, and that the defendants' motion for judgment on the pleadings should have been sustained. The reply was not waived, and we think it was error for the trial court to proceed without requiring a reply to the new mat

ter set up in the answer. Section 128 of the civil code provides that every material allegation of new matter in the answer not controverted by the reply shall, for the purposes of the action, be taken as true. The defence set up was that the entire consideration of the note was usurious, which, if true, was a complete defence to the note set out in the petition. We think a reply was necessary, and, none having been filed, we are of the opinion that the plaintiffs in error should have had judgment upon the pleadings. Scott v. Morning.1 It is unnecessary for us to notice the other errors. We recommend a reversal of the judgment, and that a new trial be granted.

By the Court: It is so ordered.

All the Justices concurring."

DAVIS v. PAYNE AND SHADDUCK.

SUPREME COURT, Iowa, DECEMBER 13, 1876.

[45 Iowa Reports, 194.]

ACTION upon a promissory note against the defendants as joint makers. Default was entered against the defendant, Payne, for want of a defence. Shadduck answered, setting up in substance that he was surety, and that there was an extension of time given by Davis to

1 18 Kan. 489.

2 Briggs v. Bruce, 9 Colo. 283; 2 Denver Co. v. Nestor, 10 Colo. 403; McCarty v. Roberts, 8 Ind. 150; Kimberling v. Hall, 10 Ind. 407; Kimberlin v. Carter, 49 Ind. 111 (semble); Ballanger v. Lantier, 15 Kan. 608; Board v. Shaw, 15 Kan. 33; Hixon v. George, 18 Kan. 253; Chicago Co. v. Frazier, 66 Kan. 422 (semble); Evans v. Stone, 80 Ky. 78; White v. Louisville Co., 15 Ky. L. Rep. 49; Louisville Co. v. Mayfield, 18 Ky. L. Rep. 224; Ill. Co. v. Nall, 21 Ky. L. Rep. 281; Brooks v. Louisville Co., 24 Ky. L. Rep. 1318; Craig v. Cook, 28 Minn. 232 (semble); Webb v. O'Donnell, 28 Minn. 369 (semble); Olson v. Tvete, 46 Minn. 235 (semble); Robinson v. Suter, 15 Mo. Ap. 599, Nelson v. Wallace, 48 Mo. Ap. 193; Cordner v. Roberts, 58 Mo. Ap. 440; Holke v. Herman, 87 Mo. Ap. 125, 132; Childers v. Stone Co., 99 Mo. Ap. 209 (semble); Mauldin v. Ball, 5 Mont. 96 (semble); Williams v. Evans, 6 Neb. 216; Payne r. Briggs, 8 Neb. 75; Scofield v. State Bank, 9 Neb. 316; Culbertson Co. v. Cox, 52 Neb. 684; Stewart v. Am. Bank, 54 Neb. 461; Davis v. First Bank, 57 Neb. 373; Sexton v. Shriver, (Neb. 1903) 95 N. W. 594; Western Co. v. Potter, (Neb. 1903) 95 N. W. 841; Ridenour v. Mayo, 29 Oh. St. 138; Creighton v. Kellerman, 1 Disn. 548; Benicia Works v. Creighton, 21 Oreg. 495; Minard v. McBee, 29 Oreg. 225; Johnson v. Maxwell, 2 Wash. 482; Henry v. Oh. Co., 40 W. Va. 334 Accord.

But there is no need of a reply to the negative answer. Riddle v. Parke, 12 Ind. 89; Ferris v. Johnson, 27 Ind. 247; Ferguson v. Tutt, 8 Kan. 370; Hoisington v. Armstrong, 22 Kan. 110; West v. Cameron, 39 Kan. 736; Uhl v. Harvey, 78 Ind. 26; Walker v. Sioux Co., 66 Iowa, 751; Medland v. Walker, 96 Iowa, 175; Nebcott v. Porter, 19 Kan. 131; Scaggs v. Poteet, 22 Ky. L. Rep. 775; Cravens v. Despain, 25 Ky. L. Rep. 2018; Wheeler v. Davis, (Ky. 1906) 96 S. W. R. 451; Conway v. Elgin, 38 Minn. 469; Pinger v. Pinger, 40 Minn. 417; King v. Burnham, 93 Minn. 288; State v. Williams, 48 Mo. 210; State v. Raes, 93 Mo. 126; Jordan v. Buschmeyer, 97 Mo. 94; Mauldin v. Ball, 5 Mont. 96; Nat. Co. v. McPherson, 19 Mont. 355; Nat. Bank v. Rocky Co., 20 Mont. 379; Peak v. Lord, 42 Neb. 15; Hoffman v. Gordon, 15 Oh. St. 212; Dayton Co. v. Kelly, 24 Oh. St. 345; Corry v. Campbell, 25 Oh. St. 134; Simmons v. Green, 35 Oh. St. 104; Cave v. Anderson, 50 S. Ca. 293; Heath v. White, 3 Utah, 474; Iba v. Central Ass'n, 5 Wyo. 355. — ED.

Payne, upon some consideration, without the knowledge of the surety, and thereby Shadduck was discharged; and that at or before the maturity of the note, Shadduck, as surety, requested Davis to sue said Payne on said note and to collect the money due thereon, and that said Davis refused to enforce collection, whereupon Shadduck informed Davis that he would not be held as surety longer, unless Davis would proceed to enforce collection against Payne. A jury was waived, and there was trial to the court. Judgment for plaintiff and defendant,

Shadduck, appeals.

ROTHROCK, J.-II.' It is insisted by counsel for appellant that as there was no reply to the answer, the allegations thereof should be held as admitted. A reply was neither necessary nor allowable. There was no counter-claim; and plaintiff did not claim to have a defence to any matter alleged in the answer by reason of the existence of some fact which avoided the matter alleged in the answer.2 The allegations of the answer not relating to a counter-claim are to be deemed controverted without a reply. Code, Secs. 2665, 2712.

Affirmed.

C. F. A. DAMBMAN, APPELLANT, v. H. SCHULTING,
RESPONDENT.

SUPREME COURT, NEW YORK, MARCH TERM, 1875.

[4 Hun, 50.]

APPEAL from an order sustaining a demurrer to the plaintiff's complaint.

DANIELS, J. This action was brought to set aside and annul a release, on the ground of the defendant's alleged fraud in its procurement. It appeared by the complaint, that a preceding action had been brought for the recovery of the debt, and the release answered as a defence. For that reason the demurrer was sustained. The plaintiff

1 Only so much of this case is given as relates to the necessity of a reply. - ED.

2 If the plaintiff seeks to defeat the answer by new affirmative matter, he must, in Iowa and Texas, plead his affirmative reply. Hay v. Frazier, 49 iowa, 454, 456 (semble); Clapp v. Cunningham, 50 Iowa, 307; Parno v. Iowa Co., 114 Iowa, 132, 134; Tex. Co. v. Davidge, 51 Tex. 244; Tex. Co. v. Hutchins, 53 Tex. 61; East Tex. Co. v. Brown, 82 Tex. 631; Ætna Co. v. Holcomb, 89 Tex. 404; Lawder v. Larkin, (Tex. Civ. Ap. 1906) 94 S. W. R. 171. See Rev. St. Ariz. (1901), § 1357. — Ed.

8 Cassidy v. Caton, 47 Iowa, 22; Kirk v. Woodbury Co., 55 Iowa, 190; Crittenden v. Ins. Co., 85 Iowa, 652; Parno v. Iowa Co., 114 Iowa, 132; Brooks v. Pegg, (Tex. 1888) 8 S. W. R. 595; McKinney v. Nunn, 82 Tex. 44; Bauman v. Chambers, 91 Tex. 108; Rev. St. Ariz. (1901), § 1357 Accord.

In England, by the modern practice, an affirmative answer is treated as denied without any negative reply. But, as in Iowa, an affirmative reply is essential if the plaintiff would defeat the answer by proof of new matter consistent with answer. This affirmative replication, however, cannot be pleaded, as in Iowa, as a matter of course. The plaintiff must first obtain an order of court sanctioning such replication. Rules of Superior Court, 1883, Order XXIII r. 1; Odgers Pl. (5th ed.), 245. — ED.

insisted that the decision made was erroneous, for the reason that he could not avoid the effect of the release by proving the fraud in that action. In that the learned counsel for the plaintiff is very clearly mistaken. Fraud invalidates all instruments, however solemn, both at law and in equity. And as no reply is either required or provided for, unless directed by special order of the court, to the defence of a release, the plaintiff may avoid and overcome its effects by evidence showing it to have been procured by fraud. The provision of the Code upon this subject, is, that "the allegation of new matter in the answer, not relating to a counter-claim, or of new matter in a reply, is to be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require." Code, § 168. And it is so broad, that it secures to the plaintiff the benefit of every possible answer to the defence made by way of new matter not constituting a counter-claim, as fully as though it were alleged in the most complete and artistic form. He may avoid it by any evidence properly attended with that result, under the principles of either law or equity. This was held to be the right of the plaintiff under the present system of practice, when a reply was required to new matter in the answer. Phillips v. Gorham. And the principle has been held to be equally as applicable since the reply to such a defence has been dispensed with. Sheehan v. Hamilton. In deciding that case, it was stated by Judge Leonard, who delivered the opinion of the court, that no reply to an answer is necessary, unless it sets up a counter-claim; but the plaintiff is permitted to prove any matter in denial or avoidance of the answer, where it sets up new matter, as the case may require. § Id., 306.

The right of the plaintiff to avoid the release by proof of fraud in the action prosecuted for the recovery of the debt, is further confirmed by the conclusion stated by Judge Allen, in deciding the case of Dobson v. Pearce, and which was concurred in by the court, that the

1 Cannon v. Davis, 33 Ark. 56; Curtiss v. Sprague, 49 Cal. 301; Colton v. Raynor, 57 Cal. 588; Rankin v. Sisters, 82 Cal. 88; Grangers Assn. v. Clark, 84 Cal. 201; Williams v. Dennison, 94 Cal. 540; Sterling v. Smith, 97 Cal. 343; Moore v. Copp, 119 Cal. 429; Brooks v. Johnson, 122 Cal. 569; Harding v. Harding, (Cal. 1906) 83 Pac. R. 434; 3 Idaho, Codes, § 3452; Hickman v. Dawson, 33 La. An. 438; Cook v. Shearman, 103 Mass. 21; Lyon e. Manning, 133 Mass. 439; Moore v. N. W. Co., (Mass. 1906) 78 N. E. R. 488; Caruthers v. Pemberton, 1 Mont. 111; Babcock v. Maxwell, 21 Mont. 407; Gen. St. Nev. § 3087; Johnson v. White, 6 Hun, 587; Claflin v. Taussig, 7 Hun, 223; Jackson v. Brown, 76 Hun, 41; Sheehan v. Hamilton, 2 Keyes, 304; Vassear v. Livingston, 13 N. Y. 248; Arthur v. Homestead Co., 78 N. Y. 462; Metrop. Co. v. Meeker, 85 N. Y. 614; Argall v. Jacobs, 87 N. Y. 110; Keeler v. Keeler, 102 N. Y. 30; Keck v. Phoenix Co., 3 N. Y. Civ. Pro. 380; Marich v. Brooks, 21 N. Y. St. Rep. 534; Chambovet v. Cagney, 35 N. Y. Super. Ct. 474; Fox v. Powers, 65 N. Y. Ap. Div. 112; Sullivan v. Traders' Co., 169 N. Y. 213; Nesbit v. Jencks, 81 N. Y. Ap. Div. 140; Reno v. Thompson, (N. Y. Ap. Div. 1906) 97 N. Y. S. 744; Jones v. Cohen, 82 N. Ca. 75; Fitzgerald v. Shelton, 95 N. Ca. 519; Askew v. Byran, 118 N. Ca. 526; Fishblate v. Fidelity Co., (N. Ca. 1906) 53 S. E. R. 354; Heebner v. Shepard, 5 N. Dak. 56; Price v. R. R. Co., 38 S. Ca. 199; Egan v. Bissell, 54 S. Ca. 80; Bank r. Gadsden, 56 S. Ca. 313; Seiberling v. Mortinson, 10 S. Dak. 644; Wood v. Lake, 13 Wis. 84; Smith v. Coolbaugh, 21 Wis. 427; Payne v. Payne, (Wis. 1906) 109 N. W R. 105 Accord. ED.

-

2 17 N. Y. 270.

8 2 Keyes, 304.

42 Kern. 156.