Brenton Bros. & Leach v. Hill
| Decision Date | 05 February 1924 |
| Docket Number | No. 35732.,35732. |
| Citation | 197 Iowa 125,196 N.W. 947 |
| Court | Iowa Supreme Court |
| Parties | BRENTON BROS. & LEACH v. HILL. |
OPINION TEXT STARTS HERE
Appeal from District Court, Dallas County; H. S. Dugan, Judge.
This is an action at law to recover an alleged balance of the purchase price of certain bonds. Verdict and judgment for the defendant. Plaintiff appeals. Affirmed.White & Clarke, of Adel, for appellant.
E. W. Dingwell, of Adel, for appellee.
The petition alleged that the plaintiff, a copartnership engaged in the banking business, sold and delivered to the defendant certain liberty bonds to the amount of $700; that defendant on the date of the sale paid to plaintiff on account of such purchase the sum of $70, and that “there remains due plaintiff on account of said purchase of bonds the sum of $630,” for which sum with interest plaintiff demands judgment. The answer was a general denial.
The testimony on behalf of plaintiff showed the purchase of bonds to the amount of $650, and this is not disputed by the defendant. The only dispute is, whether at the time of the purchase, the defendant gave to plaintiff a check for $65, in payment of 10 per cent. of the amount of the purchase, as contended by plaintiff, or a check for $650 in full payment as claimed by defendant. This was the only question submitted to the jury.
But two questions are presented on appeal: (1) Did the court err in submitting the question of payment to the jury in the absence of a plea of payment in the answer? and (2) is the verdict supported by sufficient evidence?
When, if at all, the claim of payment may be made and evidence supporting it admitted under a general denial is a question that has not, under all circumstances, been free from uncertainty. While the question has not arisen as frequently as might be expected from the great number of cases where payment is relied on as a defense, this is in a large measure due, no doubt, to the fact that, where reliance is put upon payment to defeat a demand, practical considerations afford a strong inducement to avoid any possible question of the right to do so by pleading it. It appears to have been the accepted practice in this state to present the issue by an affirmative plea, even in cases where it has been held it was unnecessary to do so. The precise question has not, save in one or two cases, been squarely presented to this court, so far we have been able to discover, although it has been several times discussed.
The general issue at common law was broader in respect to what might be shown under it than the general denial of code pleading; and a great variety of defenses were then admitted that cannot be introduced under the latter.
Section 3629 of the Code provides that any defense showing matter of justification, excuse, discharge, or release, and any defense which admits the facts of the adverse pleading, but by some other matter seeks to avoid their legal effect, must be specially pleaded. It is well settled, we think, that, as a general rule, payment must be affirmatively pleaded to be available as a defense, especialy under statutes similar to ours. Jamison v. Auxier, 145 Iowa, 654, 124 N. W. 606;Tedrow v. Johnson, 167 Iowa, 513, 149 N. W. 645;Delana v. Voss (Iowa) 114 N. W. 1076;Hubler v. Pullen, 9 Ind. 273, 68 Am. Dec. 620;Spaulding v. Peterson, 142 Mo. 526, 39 S. W. 453, 40 S. W. 1094;Barker v. Wheeler, 62 Neb. 150, 87 N. W. 20;Cady v. Bank, 46 Neb. 756, 65 N. W. 906;Ashland v. May, 51 Neb. 474, 71 N. W. 67;Farnham v. Murch, 36 Minn. 328, 31 N. W. 453;McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696;Omaha Milling Co. v. Hallen, 105 Neb. 193, 179 N. W. 1010;Baldwin v. Clock, 68 Mich. 201, 35 N. W. 904;Doolittle v. Gavigan, 74 Mich. 11, 41 N. W. 846;In re Marx's Estate, 132 Wis. 113, 111 N. W. 1103; 30 Cyc. 1262.
It has been recognized, however, that every fact which it is necessary for a plaintiff to allege and prove in order to sustain his action may be met and controverted under a general denial, and that it is only other matters which do not go to controvert such a fact that must be set up in the answer. This principle has been applied to contracts to pay money where the failure to pay is the breach relied upon to entitle plaintiff to a recovery. The true rule is said to be that plaintiff should prove, not nonpayment generally, but nonpayment when due or at maturity, or in other words, a breach of the contract. It is not necessary for him, generally speaking, to allege more than this. In such a situation payment when due or at maturity or before a breach is not in any sense new matter under a general denial, but payment after a breach is new matter which must be pleaded. 16 Ency. Plead. & Prac. 179; Van Santvoord's Plead. 407; Bliss Code Plead. 358. This doctrine has been recognized by the courts of other states. 30 Cyc. 1262; Wheeler v. Billings, 38 N. Y. 263;Greenfield v. Insurance Co., 47 N. Y. 430;Wheeler v. Tinsley, 75 Mo. 458;Kersey v. Garton, 77 Mo. 645; Spaulding v. Peterson, supra; Conkling v. Weatherwax, 181 N. Y. 258, 73 N. E. 1028, 2 Ann. Cas. 740;Knapp v. Roche, 94 N. Y. 329;Lent v. Railway, 130 N. Y. 504, 29 N. E. 988;Parker v. Baldwin, 216 Mich. 472, 185 N. W. 746.
Some of the earlier cases in this state seem to be in conflict with the general rule. Sinnamon v. Melbourn, 4 G. Greene, 309. It is there said:
“This court has decided that payment may be given in evidence, in actions upon contract, under the general denial of indebtedness.”
This case was decided prior to the enactment of section 2942 of the Revision of 1860, which is substantially the same as section 3629 of the present Code. In Stacy v. Stichton, 9 Iowa, 339, and Powesheik County v. Mickel, 10 Iowa, 76, it was held that payment was not an affirmative defense in the sense that a reply was required.
In the case of Garretson v. Bitzer, 57 Iowa, 469, 10 N. W. 818, the plaintiff sued to recover a balance due upon the purchase price of property purchased by the defendant. The answer denied any indebtedness on account of the sale and averred the sale was upon different terms and upon a different consideration, which had been paid. The case was tried to the court, who held the burden of proof was upon plaintiff and that he had failed to establish the facts essential to his recovery by a preponderance of the evidence. This court disposed of the matter by saying in substance, that the defendant did not admit the contract as set up by plaintiff or that the amount claimed was due, but set up the agreement as he understood it and that he had complied with it; and that it was not incumbent on defendant, in order to defeat plaintiff's claim, to prove this agreement and a compliance with it; that the substantial issue was whether there was the amount claimed due plaintiff on the contract of purchase as alleged by plaintiff and denied by defendant; that the plaintiff could not recover without proving some amount due, and the burden of proof was upon him to so establish.
Howerton v. Augustine, 130 Iowa, 389, 106 N. W. 941, was an action to recover damages for fraudulent representations in an exchange of real property. A directed verdict for defendant was sought to be sustained on the ground that plaintiff had not alleged or proved that the damages were due and unpaid. It was said there was no rule of pleading in actions for tort requiring plaintiff to allege and affirmatively prove in the first instance that the damages had not been paid. The court, speaking by Chief Justice McClain, said further:
...
To continue reading
Request your trial