CHAPTER V.

THE REPLY.

CODE PROVISIONS:

Reply; what to contain.-Where the answer contains a counterclaim, the plaintiff, if he does not demur, may reply to the counter-claim. The reply must contain a general or specific denial of each material allegation of the counter-claim, controverted by the plaintiff, or of any knowledge or information thereof sufficient to form a belief; and it may set forth in ordinary and concise language, without repetition, new matter not inconsistent with the complaint, constituting a defense to the counter-claim. -N. Y. Code Civ. Proc., § 514.

Judgment upon failure to reply.—If the plaintiff fails to reply or demur to the counter-claim, the defendant may apply, upon notice, for judgment thereupon; and, if the case requires it, a reference may be ordered, or a writ of inquiry may be issued, as prescribed in chapter eleventh of this act, where the plaintiff applies for judgment.-Ib. § 515.

Cases where the court may require a reply.-Where an answer contains new matter, constituting a defense by way of avoidance, the court may, in its discretion, on the defendant's application, direct the plaintiff to reply to the new matter. In that case, the reply, and the proceedings upon failure to reply, are subject to the same rules as in the case of a counter-claim.—Ib. § 516.

Plaintiff may set forth several avoidances in reply.-A reply may contain two or more distinct avoidances of the same defense or counter-claim; but they must be separately stated and numbered.-Ib. § 517.

Reply and demurrer to answer. The plaintiff may demur to one or more defenses set up in the answer, stating in his demurrer the grounds thereof; and where the answer contains new matter, the plaintiff shall reply to such new matter within such time as the court by rule or otherwise shall require, denying generally or specifically the allegations controverted by him, or any knowledge or information thereof, sufficient to form a belief, and he may allege in ordinary and concise language and without

repetition any new matter not inconsistent with the petition, constituting a defense to the new matter in the answer. To this reply the defendant may demur within three days after the same has been filed.-R. S. 1889 (Mo.), § 607.

Defendant entitled to judgment, when.-If the answer contains a statement of new matter, and the plaintiff fail to reply or demur thereto within the time prescribed by the rule or order of the court, the defendant shall have such judgment as he is entitled to upon such statement; and if the case require it, a writ of inquiry of damages may issue.-Ib. § 608.

Replies and demurrers, by what rule governed. The reply shall be governed by the rules prescribed in relation to answers; and demurrers to the answer or reply shall be governed by those prescribed in relation to demurrers to petitions, where they apply; and when a replication is filed the cause shall be deemed at issue.-Ib. § 609.

PUGET SOUND IRON CO. v. WORTHINGTON.

2 Wash. Ter., 472. [1885.]

TURNER, J.: The action in the court below was brought by the appellees against the appellant for the breach of a contract described as follows:

"Said defendant entered into a contract with plaintiffs by the terms of which it was, among other things, mutually agreed to the effect that said defendant should cut, cord, and furnish to the plaintiffs, within a reasonable time thereafter, all the cordwood on the lands known as the 'Bishop and Johnson land,' situate at Irondale, Jefferson County, aforesaid, for the purpose of the whole thereof being made and converted into good and merchantable charcoal by plaintiffs; and said defendant further agreed to pay the plaintiffs eight cents for each and every bushel of said charcoal delivered by plaintiffs to defendant, and to charge plaintiffs for said wood at the rate of one dollar for every forty bushels of charcoal delivered as aforesaid, and no more."

The complaint alleges performance on the part of the plaintiffs with all the conditions of the contract, and alleges as a breach by the defendant the refusal to deliver the balance of the

wood described in the contract, some 4,000 cords, to be made into charcoal by the plaintiffs.

Here defendant in its answer denies all the material allegations of the complaint. For an affirmative defence it sets out in haec verba a written contract entered into between the plaintiffs and itself, on the day alleged in the complaint as the day on which the contract sued on was made, whereby it was to deliver to the plaintiffs, to be made up into charcoal, 10,000 cords of wood, more or less; alleges that no other contract than the contract thus set out was ever entered into between plaintiffs and itself, and alleges that it has fully performed the conditions of said contract by delivering to the plaintiffs some 13,000 cords of wood.

The plaintiffs replied to the answer as follows:

"That at the time of the making of the said written agreement, and thereafter, it was mutually agreed by and between the plaintiffs and defendant, in addition to said writing, and as a part of the contract sued on in this action, that defendant should furnish plaintiffs, within a reasonable time, and plaintiffs should manufacture into charcoal, and deliver at the price named in the said writing, all the cord-wood then cut and corded, or standing, or lying, or being upon all the lands known as the 'Bishop and Johnson lands,' situated at Irondale, aforesaid."

The defendant demurred to this reply, which demurrer was overruled. The parties then went to trial, and the trial resulted in a verdict for plaintiffs. The cause is here by appeal under the act of 1883.

The first matter assigned by the appellant as error which we shall notice is the failure of the court to sustain the demurrer to the reply. The appellant attacks the reply as a departure in pleading. The appellees attempt to sustain it as a new assignment of the contract described in the complaint. In our judg ment, it is neither. It is not a departure, because it is perfectly consistent with the complaint. It is not a new assignment, because there is no such thing as a new assignment, as that term was understood at common law, under our system of pleading. If, under our system, it becomes necessary for a party to restate his cause of action, he may do so by amendment. The reply must traverse, or confess and avoid. Code, § 86.

But the reply was, for the purposes of the action, wholly impertinent. It should have been stricken from the cause. It was

no more impertinent, however, than the affirmative defence which it professed to reply to. Under our system of pleading the technical learning of the common-law pleader is of but little account. The plaintiff is required to state his cause of action with sufficient particularity to apprise the defendant of its true character. The defendant in his answer must deny the facts alleged in the complaint, or he must state new matter in avoidance or by way of counter-claim. If these several pleadings are not accurate and full, the party required to take the next step may have them made more definite and certain before he proceeds. With these fundamental principles kept in view, it would seem easy for a person of ordinary intelligence to frame correct pleadings. In this case the defendant denied all the matters averred in the complaint. His affirmative defence cannot be construed as doing more; neither the supposed affirmative defence, nor the reply to it, add anything to the issue, which was fully and completely made up when the defendant denied that it made the contract

described in the complaint. It added nothing to that denial to 293

set out affirmatively the version of the contract which defendant insisted was the true one. Seeking no affirmative relief, it made no difference what other contract it had made with the plaintiff, if it had not made the one sued on. It is a matter of surprise to the court that counsel of so much ability and industry as those engaged in this cause should have overlooked these plain and obvious principles of code pleading. The court properly overruled the demurrer to the reply.

Judgment affirmed.

CAMPBELL v. BANNISTER.

79 Ky., 205. [1880.]

Chief Justice COFER delivered the opinion of the court. This was an action for slander in charging the plaintiff with the crime of arson. The defendant, by his answer, admitted that he spoke the words charged, but averred they were spoken to his wife in the privacy of his family, and were accidentally overheard by another person in the house, but not known to be within hearing, and thus, without having been so intended by him, became public. And he further averred that this was done without

malice, and was the wrong and injury complained of in the petition.

In his reply, the plaintiff averred that it was not true that the defendant spoke the words complained of under the circumstances stated in the answer; and he also averred that the defendant had often spoken the words, or the substance of them, in the presence of divers persons.

With the pleadings in this condition, the parties went to trial, which resulted in a verdict for the plaintiff for one cent in damages, and his motion for a new trial having been overruled, he has appealed.

One whose house has been set on fire may communicate to his family, under proper precautions, and without malice, his suspicions as to who the incendiary is, and he will not be responsible to a person falsely accused for so doing.

If he be sued, the fact that he repeated the accusation to others may be given in evidence, for the purpose of proving that the communication to his family was malicious, and that was the only purpose for which evidence of other publications of the defamatory words was admissible in this case.

The plaintiff, having traversed the allegations of the answer, had no right to recover for any other publication than that admitted in the answer.

If that was not the publication for which he sued, he should have filed an amended petition, setting forth his cause of action more minutely and circumstantially, and could not, by anything contained in his reply, draw the defendant away from the particular publication admitted in the answer. This could only be done by a new assignment.

A new assignment is not, properly speaking, a replication, since it does not profess to reply to anything contained in the defendant's answer, but throws aside as useless a previous pleading, or, rather, re-states, in a more minute and circumstantial manner, the cause of action alleged in the petition which the defendant, through mistake or design, has omitted to answer. is, therefore, in the nature of a new petition, or, rather, it is a more precise and particular repetition of the matter contained in the original petition, so as to indicate that the plaintiff is suing for a matter other than that to which the answer relates. (Chitty on Pl., p. 653.)

Judgment reversed.