Baker v. Kistler
| Decision Date | 29 June 1859 |
| Citation | 13 Ind. 59 |
| Parties | Baker and Others v. Kistler |
| Court | Indiana Supreme Court |
A Petition for a Rehearing of this Case, was Filed on the 13th of July, and Overruled on the 8th of November.
From the Lagrange Circuit Court.
The judgment is affirmed with 5 per cent. damages and costs.
J. B Howe, for appellants.
A Ellison, for appellee.
Kistler sued the appellants, who were the defendants, for work and labor done by him for them, at their request. Defendants answered by a general denial. Verdict for the plaintiff. New trial refused, and judgment, &c.
During the trial, one Coffin, a witness, testified that he had, on his own account, and not for the defendants, paid the plaintiff several hundred dollars--he thought about 400 dollars; that in August, 1855, about 100 dollars was due; and that the work was all done for him, and not for the defendants. The testimony of the plaintiff, however, was that all the work, after August, 1855, was done for the defendants. This was all the evidence relative to payment.
After the close of the evidence, the defendants moved to instruct as follows: This instruction was refused, and its refusal raises the only question presented in the argument of counsel.
As we have seen, the only issue in the cause, rests upon the general denial and the correctness of the instruction, depends upon the solution of this inquiry--Was the evidence of payment applicable to the issue?
The code says: "All defences, except the mere denial of the facts alleged by the plaintiff, shall be pleaded specially." 2 R. S. p. 42. § 66.
This evidently means, facts which the plaintiff, to sustain his action, is bound to prove; and we have decided that "every matter of fact which goes to defeat the cause of action, and which the plaintiff is not under the necessity of proving, in order to make out his case, must be alleged in the answer." And further, "that there is no way in which the defendant can avail himself of the defence of payment, without pleading it." Hubler v. Pullen, 9 Ind. 273, and cases there cited. It is, however, contended that the instruction relates to the evidence; and that that proves a payment by a third person, which should be allowed to inure to the benefit of the defendants, and of which they have a right to avail themselves, under the general...
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