All Elec. Service, Inc. v. Matousek

• Decision Date: 03 March 1970
• Docket Number: No. 87,87
• Citation: 46 Wis.2d 194,174 N.W.2d 511
• Parties: ALL ELECTRIC SERVICE, INC., Appellant, v. Carl MATOUSEK, Respondent.
• Court: Wisconsin Supreme Court

Page 511

174 N.W.2d 511

46 Wis.2d 194

ALL ELECTRIC SERVICE, INC., Appellant, v. Carl MATOUSEK, Respondent.

No. 87.

Supreme Court of Wisconsin.

March 3, 1970.

This action was commenced on January 2, 1969. The complaint alleged that the parties entered into an oral agreement in December of 1966, by which it was agreed that the plaintiff-appellant would provide the general wiring for an apartment house the defendant-respondent was constructing and that defendant would pay what the services were reasonably worth. The complaint alleged:

'5. The plaintiff has completely performed everything that is required of him under the terms of the agreement.

'* * *

'7. The said services were reasonably worth the sum of Seven Thousand Two Hundred Seventy-Six and 95/100 ($7,276.95) Dollars.

'* * *

'9. The same has not been paid except the sum of Five Thousand One Hundred Twenty-Three and no/100 ($5,123.00) Dollars, and the sum of Two Thousand One Hundred Fifty-Three and 95/100 ($2,153.95) Dollars remains due and unpaid to the plaintiff, with interest from the 29th day of January, 1968.

'10. By reason of the defendant's failure to perform under the terms of the agreement, the plaintiff has suffered damages in the amount of Two Thousand One Hundred Fifty-Three and 95/100 ($2,153.95) Dollars.'

The defendant answered admitting there was an agreement between the parties but with the qualification that plaintiff had quoted specific prices for appliances and segments of the electrical work to be performed by the plaintiff for the defendant.

In his answer defendant further stated:

'2. Denies:

A. That plaintiff completely performed, or performed, everything that was required of it under the said agreement;

B. That plaintiff's services were reasonably worth the sum of $7,276.95;

C. That the sum of $2,153.95 remains due to plaintiff, or that any interest is due plaintiff, and

D. That it has suffered damage in the amount of $2,153.95 by reason of any failure to perform by defendant.'

The answer also set forth several affirmative defenses in which defendant alleged (a) that plaintiff failed to perform the electrical services in conformance to the electrical requirements and specifications furnished by the defendant; (b) that plaintiff is attempting to charge defendant with prices for particular fixtures and segments of the work at amounts substantially in excess of the prices quoted by plaintiff to the defendant; (c) that plaintiff is attempting to charge defendant for an obligation of the general contractors on this apartment construction job, such obligation being no responsibility of the defendant; and (d) that the work performed by plaintiff on the apartment building was not performed in a proper, workmanlike manner, or in accordance with the existing Industrial Commission requirements and that plaintiff's claim is overstated and the charges set forth in the complaint are in excess of the reasonable value for the services and materials furnished to defendant.

After defendant's answer was filed, plaintiff moved for judgment on the pleadings on February 27, 1969. The trial court denied plaintiff's motion and entered judgment dismissing plaintiff's complaint on its merits.

Plaintiff appeals.

Jasper, Winner, Perina & Rouse, Donald R. McCallum, Madison, for appellant.

Cross, Langer & Krainik, Clyde C. Cross, Baraboo, for respondent.

WILKIE, Justice.

Three issues are raised on this appeal involving the trial court's dismissal of plaintiff's action following the denial of plaintiff's motion for judgment on the pleadings.

1. Did the denials in defendant's answer constitute negative pregnants and as such were they insufficient to raise any issues in defense to plaintiff's cause of action?

2. Were the affirmative defenses in defendant's answer legally sufficient to raise issues of fact so as to defeat plaintiff's motion for judgment on the pleadings?

3. If the answer was sufficient to raise issues in defense, then was it erroneous for the trial court to enter judgment not only denying plaintiff's motion for judgment on the pleadings, but granting judgment on the pleadings to defendant and dismissing plaintiff's complaint on the merits?

Although the propriety of a motion for judgment on the pleadings has been questioned ¹ and its use criticized, ² this court, under its rule-making power, recently promulgated a rule expressly recognizing the availability of a motion for judgment on the pleadings. Sec. 263.227, Stats., with an effective date of July 1, 1968, now provides:

'Sec. 263.227 Judgment on the Pleadings. Judgment on the pleadings may be entered in any civil action or special proceeding. Notice of motion for judgment on the pleadings and the documents in support thereof shall be served within 40 days after issue is joined, subject to enlargement of time as provided in section 269.45' ³

Prior to the enactment of this section the use of the motion had been recognized in many early decisions of this court. ⁴ The proper method to use this rarely-employed motion was set forth in Madregano v. Wisconsin Gas & Electric Co. ⁵ In that case the plaintiff was seeking to force the public utility defendant to furnish him with service which had been cut off. The answer admitted that service to the plaintiff had been cut off but claimed this was done because the plaintiff had not paid, and refused to pay, for as much power as had been supplied to him and that the defendant had a claim for this. The plaintiff moved for judgment on the pleadings, which was granted. On appeal, this court reversed and said:

'The motion for judgment upon the pleadings raised the question of whether or not the facts alleged in the answer were sufficient in law to constitute a defense to the cause of action set out in the complaint. While the answer contains evidentiary matter which should not appear in a pleading, it did contain allegations setting up new matter, and by the provisions of section 2667, Stats., these allegations are deemed denied. There was therefore an issue of fact. In some jurisdictions it is held that under such circumstances a motion for judgment upon the pleadings should not be entertained. * * * But where the plaintiff's claim is admitted by the answer and no facts are alleged which if established would defeat it, the plaintiff may properly have judgment upon the pleadings. * * *

'In determining whether or not the facts set up in the answer constitute a defense to the plaintiff's cause of action all the averments of the answer must be taken as true. * * *

'The allegations contained in the pleadings of the moving party must be disregarded where they are in conflict with the allegations contained in the pleading of the opposite party, or are denied. The question presented for determination therefore is: Were the facts set up in the defendant's answer sufficient in law to constitute a defense to plaintiffs' cause of action? * * *' (Citations omitted and emphasis added.) ⁶

In the instant case, the plaintiff contends that the defendant's answer is insufficient to constitute a defense and therefore its motion for judgment on the pleadings should have been granted.

To achieve this objective plaintiff must demonstrate that there are no sufficient legal defenses set forth in either the denials or the matters of affirmative defense alleged in the answer.

As to the denials, plaintiff argues that since the defendant's answer merely reiterated the allegations of the complaint in negative form, they constitute negative pregnants and are ineffectual to raise a defense. ⁷

The trial court was of the opinion that paragraph 2C of the answer, which paralleled paragraph 9 of the complaint, was a negative pregnant because it 'may constitute an admission that something is due to the plaintiff.'

However, the trial court reasoned that plaintiff still must prove the amount due and since the answer specifically denied the mentioned amount, that sum could not be awarded to plaintiff. Furthermore, the trial court reasoned that since it was precluded from awarding the amount requested (because this amount was specifically denied) any amount that might be awarded if the court were to grant the plaintiff's motion for judgment on the pleadings, would be pure speculation.

The trial court is correct in its reasoning. Moreover, the cases plaintiff particularly relies on do not necessarily support its position.

Virkshus v. Virkshus ⁸ involved an action to foreclose a mortgage. The answer contained a denial, in exactly the same words as the complainant's allegation, that the mortgage was 'duly' attested and 'duly' acknowledged. This court said this was a negative pregnant--pregnant with an admission that the mortgage was attested and acknowledged. The only thing which was denied was that this attestation and acknowledgement were 'duly' performed, but since this was a conclusion of law this denial actually raised no issue. If 'due' execution had constituted a material factual issue, then a triable issue would have been raised by this denial.

Similarly, in Bjelde v. Dolan ⁹ this court, while noting its disapproval of the use of negative pregnants when used in pleading, said the pleading was defective as to form only and could be cured by amendment.

Thus, in Spence v. Spence, ¹⁰ this court indicated that a negative pregnant in a responsive pleading is not necessarily ineffectual. In that case a denial that the defendant had received plaintiff's money for the purpose of buying certain lands for plaintiff was recognized to be a negative pregnant but it was effective as a denial to the purpose for which the money was to be used but pregnant with an admission that defendant had received plaintiff's money for some purpose. Since the plaintiff's cause of action was dependent on establishing both the delivery and the specific purpose for which this money was to be used by defendant, this negative pregnant denial was held sufficient.

From these cases it would appear...