69 68 from any material allegation in the complaint; yet, where there is an evasive plea, the plaintiff may avoid the effect of it by restating his cause of action with more particularity and certainty, so as to meet and thwart the particular defense set up.67 A reply can serve the plaintiff no purpose, except to controvert or avoid new matters set up in the answer. He cannot set up one cause of action in his complaint, and, after answer made, abandon that and make an entirely new cause of action on a reply. Nor can a claim for relief, as set forth in the complaint, be in any manner enlarged in reply to the defendant's answer. As to new matter contained in the answer, the replication should follow the requisites of an answer, whether the denial should be general or specific," and should be verified under the same circumstances.72 In an action for work and labor done, in which a counterclaim for different items is set up, a reply alleging that the amounts of the items are less than that set forth in the counterclaim, and have been fully paid, without asking any affirmative relief, is not inconsistent with the complaint." § 748. Promissory note.-Where, in an action on a promissory note, brought under the New York code of 1848, the defendant pleaded the statute of limitations, and the plaintiff replied, merely denying the plea, it was held that evidence of a new promise was admissible under the reply." Where, in an action by an executor upon notes due to his testator by the defendant, who, it was alleged, had fraudulently seized them after the death of the testator, the defendant pleaded the statute of limitations, after the commencement of the trial, and it was evident that the fraudulent seizure was the plaintiff's answer to the plea, it was held that the want of a formal replication was not cause for reversing the judgment." § 749. Reply-When unnecessary.-If the answer is wholly lacking in substance as to the essentials which constitute a good 67 1 Chit. Pl. 603; Troup v. Smith, 20 Johns 33. 68 Lillienthal v. Hotaling Co., 15 Or. 371, 15 Pac. 630. 69 Osten v. Winehill, 10 Wash. 333, 38 Pac. 1123; Clark v. Sherman, 5 Wash. 681, 32 Pac. 771. 70 Bell v. Waudby, 4 Wash. 743, 31 Pac. 18. 71 Hammer v. Edwards, 3 Mont. 187. 72 Hill Brick etc. Co. v. Gibson, 43 Colo. 104, 95 Pac. 293. 73 Van Bibber v. Fields, 25 Or. 527, 36 Pac. 526. 74 Esselstyn v. Weeks, 2 Abb. Pr. 272. 75 Bricker v. Lightner's Executor, 40 Pa. St. 199. answer, no reply is necessary.76 Whatever facts are alleged in the answer that might have been proved under a specific denial of the allegations of the complaint should be regarded as specific denial. only, and require no replication." But whatever averments of the answer amount to an admission of the allegations of the complaint, and tend to establish some fact not inconsistent with such allegations, constituting a defense or counterclaim, and which could not have been proved under a specific denial, are new matter, and require a replication." 83 If there is no replication, all affirmative material allegations of the answer will be presumed to be admitted." But affirmative allegations in answer in quiet-title suit do not call for a reply;80 likewise an allegation that the debt sued on is not yet due.81 But legal conclusions need not be denied ;s2 nor is a party required to reply to evidence set out in an answer. Under the New York Code of Civil Procedure (§ 516), it is in the discretion of the court to require the plaintiff to reply to new matter set up in answer by way of avoidance. A replication is not necessary to an answer which puts in issue the ownership of the note sued upon, and contains new matter which is not defensive.85 And the plaintiff need not reply to an affirmative defense until his demurrer to a special defense has been determined.86 Defendant by going to trial on the issues raised by his answer waives the necessity for a reply, if one was otherwise required.87 84 § 750. Reply-Sufficiency of. In an equity case, the insufficiency of a reply is immaterial, when the defendants wholly fail 76 Weber v. Rothschild, 15 Or. 385, 3 Am. St. Rep. 162, 15 Pac. 650. 77 Mauldin v. Ball, 5 Mont. 96, 1 Pac. 409. 78 Id.; Davis v. Clark, 2 Mont. 310. 79 McMillan v. Carter, Mont. 215, 9 Pac. 906; Larsen v. Oregon etc. Nav. Co., 19 Or. 240, 23 Pac. 974. 80 Dueber v. Wolfe, 47 Wash. 634, 92 Pac. 455. 81 Schecter v. White, 41 Colo. 219, 92 Pac. 700. 82 McMillan v. Carter, 6 Mont. 215, 9 Pac. 906; Larsen v. Oregon etc. Nav. Co., 19 Or. 240, 23 Pac. 974; Denver, etc. Co. v. Nestor, 10 Colo. 403, 15 Pac. 714. 83 Steinway v. Steinway, 22 N. Y. Supp. 945, 68 Hun, 430, 29 Abb. N. 84 Cauchois v. Proctor, 29 N. Y. Supp. 770, 79 Hun, 388. See, also, as to reply under New York practice, Wood v. Gordon, 13 N. Y. Supp. 595; Springer v. Bien, 16 Daly, 275; Van Doren v. Jelliffe, 20 N. Y. Supp. 636. 8s Woolman v. Capital Nat. Bank, 2 Colo. App. 454, 31 Pac. 235. 86 Ewing v. Van Wagenen, 6 Wash. 39, 32 Pac. 1009. Waiver of reply to new matter in counterclaim. See Power v. Bowdle, 3 N. Dak. 107, 44 Am. St. Rep. 511, 54 N. W. 404, 21 L. R. A. 328. 87 Schecter v. White, 41 Colo. 219, 92 Pac. 700. 89 to substantiate the allegations of their answer.88 Where a plea of another action pending has been interposed, a reply that subsequent to the filing of the plea the suit whose pendency was alleged had been dismissed is good against demurrer. A reply which merely denies knowledge or information sufficient to form a belief as to whether the facts are correctly stated in the answer does not deny the material allegations as required by section 516 of the New York Code of Civil Procedure." § 751. Reply-Time of filing of. The ruling of the trial court permitting the plaintiff to file a reply on the same day that the defendant moves for judgment on the pleadings, because of failure to reply, will not be disturbed when there is no showing of abuse of discretion."1 § 752. Rejoinder-Its office. A rejoinder must answer the replication, and tender an issue on a single point. If it is double, it is demurrable."2 A rejoinder is bad which avers several distinct answers to the replication, or puts matter of law in issue to the jury.93 A rejoinder must maintain the plea, and cannot set forth matter of variance with it. After pleading that the plaintiff was not damnified, the defendant cannot rejoin confessing and avoiding the action, 95 by setting up a personal discharge. So one defendant, having joined with the others in a plea in bar, cannot afterwards interpose a rejoinder going to his personal discharge.90 § 753. Breach of agreement.-A replication in an action of covenant on an agreement to build was held bad for traversing immaterial time and place, and introducing averments of performance before made in the declaration.97 To a declaration for a breach of agreement to bid at auction up to a certain limit, the defendant pleaded that the property was sold for 88 Hill v. Young, 7 Wash. 33, 34 Pac. 144. 89 Boyle v. Great Northern Ry. Co., 13 Wash. 383, 43 Pac. 344. 90 Steinway v. Steinway, 26 N. Y. Supp. 657, 74 Hun, 423. 91 Stinson v. Sachs, 8 Wash. 391, 36 Pac. 287. 92 United States v. Cumpton, 3 McLean, 163, Fed. Cas. No. 14902. See McGowan v. Caldwell, 1 Cranch C. C. 481, Fed. Cas. No. 8806. 93 McCue v. Corporation of Washington, 3 Cranch C. C. 639, Fed. Cas. No. 8735. 94 Barlow v. Todd, 3 Johns. 367; Allen v. Watson, 16 Johns. 205. 95 Munro v. Alaire, 2 Caines, 320. 96 Andrus v. Waring, 20 Johns. 153. 97 Rogers v. Burk, 10 Johns. 400. more. It was held that a reply of fraud in the defendant in allowing the property to be sold for the greater amount was no departure.98 754. Conversion.-A declaration alleged that the defendants wrongfully took certain goods. The replication averred that the taking was by a sheriff, at the instance and by the direction of the defendants. It was held that there was no departure." 99 § 755. Demurrer to reply.-The reply of the plaintiff stated that he was himself the receiver mentioned in the answer, and that he was the holder and owner of the note, as such receiver, and that he sought to recover upon it in that capacity, and not individually. The defendant demurred to the reply, assigning several grounds, the substance of which was that the reply was a departure from the complaint. It was held that the demurrer was well taken. The reply was a total departure from the complaint. The right to recover individually and the right to recover as receiver are entirely distinct rights, and depend upon entirely different facts. The plaintiff, on receiving the answer, should have amended his complaint, or, if it was not amendable, he should have discontinued.100 A reply which does not respond to the entire pleading or part thereof to which it is directed is bad on demurrer for want of sufficient facts. 101 But a bad reply is sufficient for a bad answer on demurrer, and a demurrer to such reply ought to be carried back and sustained to such answer.102 § 756. Departure.-A departure is matter of substance, and bad on general demurrer.103 A rejoinder of infancy was held a departure from a plea of an insolvent discharge.104 After a plea of no award, a rejoinder confessing and avoiding the award is a departure. 105 A rejoinder impeaching the award as incomplete is a departure. 106 But a rejoinder that the defendant, prior to the making of the award, had, by writing under his hand and 98 Bame v. Drew, 4 Denio, 287. 99 Richardson v. Hall, 21 Md. 399. 100 White v. Miles, 11 How. Pr. 36. 101 Pouder v. Tate, 76 Ind. 1. See Bottles v. Miller, 112 Ind. 584, 41 N. E. 728; Silvers v. Canary, 109 Ind. 267, 9 N. E. 904. 102 Landon v. White, 101 Ind. 249; State v. Edwards, 114 Ind. 581, 16 N. E. 627; Western Union Tel. Co. v. 103 Sterns v. Patterson, 14 Johns. 132. 104 Roberts v. Kelly, 2 Hall, 307 (333). 105 Munro v. Alaire, 2 Caines, 320. 106 Barlow v. Todd, 3 Johns. 367. seal, revoked the submission, is good. A void award is no award.107 A rejoinder affirming the defense of the plea by denying the substance of the replication, without reaffirming an immaterial averment of value in the plea, is not a departure.1 108 § 757. Duplicity.-A replication which alleges two distinct and independent facts, either of which is a complete answer to the plea, is double, and is bad on special demurrer.109 § 758. Goods sold. To a complaint charging acceptance of goods purchased to have been procured by the fraudulent representations of the seller, without examination by the buyer, the defendant answered, denying the fraud, and alleging that the buyer had examined the goods and had full knowledge of their quality. The reply admitted an examination of the goods by the plaintiff, and a knowledge of certain facts indicating the defects complained of, but averred that he relied on defendant's representations, and that the defendant had subsequently promised to pay the damages claimed. It was held that the reply was a departure, and that objection could be taken to it by demurrer.110 759. Insurance policy.-To a declaration on a policy of insurance, averring a total physical loss, a replication of survey and condemnation after arrival at the port of destination is a departure.111 § 760. Obstructing highway.-An indictment for obstructing a highway alleged in the first count the obstruction of a road "leading from S.'s gate to B.'s house," and in the second count the obstruction of a road leading "from S.'s gate towards the turnpike." A replication averring that the road ran "from S.'s gate to the turnpike" was held a departure, as the former averred the existence of a public road, while the latter did not.112 § 761. Withdrawal and substitution of plea.-Where a plaintiff replies to a plea, and his replication, being demurred to, is held 107 Blacksell v. Tomkins, 11 East, 187; Allen v. Watson, 16 Johns. 205. 108 Burr v. Baldwin, 2 Wend. 580. 109 Burnham V. Webster, Davies, 236, Fed. Cas. No. 2178. See Craig v. Brown, Pet. C. C. 443, Fed. Cas. No. 3329. 110 McAroy v. Wright, 25 Ind. 22. 111 Griswold v. National Ins. Co., 3 Cow. 96. 112 State v. Price, 21 Md. 419. |