Adams v. Trigg

• Decision Date: 31 January 1866
• Citation: 37 Mo. 141
• Parties: WILLIAM D. ADAMS, ADMINISTRATOR OF DAVID ADAMS, DECEASED, Plaintiff in Error, v. WILLIAM H. TRIGG, Defendant in Error.
• Court: Missouri Supreme Court

37 Mo. 141

WILLIAM D. ADAMS, ADMINISTRATOR OF DAVID ADAMS, DECEASED, Plaintiff in Error,

v.WILLIAM H. TRIGG, Defendant in Error.

Supreme Court of Missouri.

January Term, 1866.

Error to the Cooper Circuit Court.

Draffin, Hutchison & Muir, for plaintiff in error.

I. Only a single issue was presented by the pleadings in this case. The only material part of the defendant's answer was the denial that the plaintiff's intestate had made the deposit in question, and the court erred in refusing plaintiff's instruction first asked for, raising this point. The remainder of the answer has reference to a deposit alleged to have been made by the plaintiff of his own money and in his own right. Whether the plaintiff, in his own right, had made such a deposit, and what had become of the deposit, could not be tried in a suit in his representative capacity as administrator of David Adams, for a deposit made by deceased in his lifetime. (Coble v. McDaniel, 33 Mo. 363.)

II. But assuming that the defendant, by his answer, intended to admit that the alleged deposits were really made by the plaintiff's intestate, then the answer contained several distinct and inconsistent defences, and the court erred in overruling the plaintiff's motion to strike it out. This answer is clearly multifarious, and sets up several inconsistent defences, and should have been stricken out. (R. C. 1855, p. 1233, § 14; Atter berry v. Powell, 29 Mo. 429.)

Douglas and Gage, for defendant in error.

I. The first question arises on the pleadings: Were the defences set up in the answer well pleaded? Under the present system of pleading the answer is good. “The defendant may set forth by answer as many defences as he may have.” (2 R. C. 1855, p. 1233. § 13; St. Louis Pub. Schools v. Risley, 28 Mo. 415.) The allegation of facts in the alternative, as in this answer, is authorized by the Code. (R. C. 1855, p. 1238, § 46.) Courts of New York have held that different and inconsistent defences may be set up in the same answer; and they have gone so far as to decide that “the defendant may set up any matter which will prevent a recovery.” (Sweet v. Tuttle, 10 How. Prac. 40; Hackley et al. v. Ogment, ib. 44; Heaton v. Wright, ib. 79; Stiles v. Comstock, 9 How. 48; Butler v. Wentworth, How. 282; Hollenback v. Clow, How. 289; Ketcham v. Zerega, 1 E. D. Smith, 560; Brown v. Ryckman, 12 ib. 313.) The case of Atterberry v. Powell, 29 Mo. 428, is in conflict with the weight of authority.

WAGNER, Judge, delivered the opinion of the court.

This was an action brought by the plaintiff, as administrator, to recover of the defendant certain Missouri bank bills and United States treasury notes alleged to have been specially deposited with him by the plaintiff's intestate.

Defendant in his answer denied that any such deposit was made by plaintiff's intestate; but admitted that the plaintiff in his own name made two special deposits with him. He then stated as a defence that the said deposits were delivered back to the plaintiff, or if any part was not so delivered, the same was lost without the fault or negligence of the defendant, and that he was ignorant...