Caldwell v. Ruddy

• Decision Date: 14 September 1881
• Parties: CALDWELL v. RUDDY
• Court: Idaho Supreme Court

1 P. 339

2 Idaho 1

CALDWELL v. RUDDY

Supreme Court of Idaho

September 14, 1881

OBJECTIONS TO ANSWER IN THE SUPREME COURT.-An objection that an answer does not contain facts sufficient to constitute a defense may be made in the supreme court for the first time.

SAME.-If however, the answer contains any defense, the objections must be overruled.

ANSWER-INCONSISTENT DEFENSES-DEMURRER-MOTION TO STRIKE.-An objection that the answer contains inconsistent defenses cannot be made by demurrer, but by motion to strike out, or to require the defendant to elect upon which defense he will stand.

IMPROVEMENTS - PUBLIC LANDS - SALE - CONSIDERATION.-Improvements upon the public lands are lawful subjects of sale and are a sufficient consideration to support promissory notes and other contracts.

DEFENSE-INADEQUACY OF CONSIDERATION.-Inadequacy of consideration is no defense to an action on a promissory note unless there was fraud also on the part of the promisee.

VOIDABLE CONTRACT-INSANE PERSON-PERSONAL PRIVILEGES.-The contract of an insane person is merely voidable, not absolutely void. The right to avoid it is a personal right which can only be exercised by the insane person, or his guardian, or legal representatives. Other parties to the contract who are of sound mind are not affected until it is avoided by the party entitled to disaffirm it.

AVOIDING CONTRACT-RETURN OF CONSIDERATION.-The insane person may not disaffirm his contract without returning the consideration.

SURETY-COMPETENCY OF PRINCIPAL.-A surety to a promissory note is deemed to contract that the principal maker is in every way competent to contract in the way he has done.

(Syllabus by the court.)

APPEAL from District Court, Nez Perce County. Reversed.

Reversed and remanded.

A. E Isham, for Appellant.

The answer does not state facts sufficient to constitute a defense, and may be raised in supreme court for first time citing Haskell v. Moore, 29 Cal. 437. The averment of tender in the answer is insufficient, as there is no allegation that the tender was kept good. (Jouett v. Wagner, 2 Bibb, 269, 5 Am. Dec. 602, Estee's Pleading, 11, 140, 746; Redington v. Chase, 34 Cal. 666.) The answer contains inconsistent defenses. (Derby v. Gallup, 5 Minn. 119; Auld v. Butcher, 2 Kan. 135; Hensley v. Tartar, 14 Cal. 508; Kuhland v. Sedwick, 17 Cal. 123; Bell v. Brown, 22 Cal. 671; Baird v. Morford, 29 Iowa 531; Adams v. Trigg, 37 Mo. 141.) There are no facts set up which constitute fraud on this point. (See Tissot v. Throckmorton, 6 Cal. 471; Bigelow on Frauds, 409; Chitty on Contracts, 4th ed., 528; Bigelow on Estoppel, 437, 467; McMurray v. Gifford, 5 How. Pr. 14; Bigelow on Frauds, p. 64 sec. 4; Walker v. Seduick, 8 Cal. 398; Houseman v. Chase, 12 Cal. 290; Blen v. Bear River Water etc. Co., 20 Cal. 602, 81 Am. Dec. 132; 2 United States Digest, 707 (N.), 582.) The plea of tender admits the contract. (2 Parsons on Contracts, 5th ed., 638.)

Huston & Gray, for Respondent.

The evidence is not properly before the court that plaintiff should have moved for new trial, and if refused, appealed from order and embodied evidence in bill of exceptions. (Jones v. Shay, 50 Cal. 508; Watson v. San Francisco etc. R. R. Co., 50 Cal. 523.) The answer set up the following defenses: 1. Denial of partnership of defendant and Michael Ruddy, deceased; 2. Partial want of consideration; 3. Tender and payment; 4. Fraud--all of which may be plead in the same action, and in this case were part of the same transaction. (Campbell v. Wright, 21 How. Pr. 9; Meyer v. Van Collem, 7 Abb. Pr. 222; Durant v. Gardner, 10 Abb. Pr. 445; Bell v. Brown, 22 Cal. 671.)

PRICKETT, J.

OPINION

The facts are sufficiently stated in the opinion.

PRICKETT, J.

--This action was brought by the plaintiff against the defendant, in the district court, upon two joint and several promissory notes, alleged to have been executed by the defendant and one Michael Ruddy, deceased. Each of said notes are for the sum of $ 2,646.38, both dated March 7, 1872--one due October 15 1872; the other, October 15, 1873. Also upon an account for $ 303.34. Upon the first-mentioned note is credited $ 1,554.13, January 15, 1873. The defendant's amended answer consists of ten subdivisions, each of which was, no doubt, intended as a complete or partial defense to the said several causes of action, or to some one or more of them. Such proceedings were had in the district court as resulted in the striking out of the seventh and ninth subdivisions of the answer. The plaintiff demurred in the court below to the amended answer, alleging as objections that the second and third subdivisions are inconsistent with the tenth, and that the sixth and eighth paragraphs are inconsistent with each other; and also specially demurred to the tenth paragraph, on the ground that it constitutes no defense to the action. The district court overruled the demurrer, and the plaintiff excepted to that ruling. The cause being tried by a jury, a verdict was rendered for the defendant, whereupon a judgment was rendered against the plaintiff for costs. From that judgment the plaintiff appealed to this court. Much of the matter contained in the transcript was stricken out on motion, because it constitutes no part of the record, not being made such either by the statute, or by bill of exceptions or statement.

The case as it now stands is to be reviewed upon the judgment roll alone, which consists of the complaint, amended answer, the demurrer to the answer, and the decision of the court thereon, and the exception of the plaintiff thereto, the verdict, and the judgment.

The plaintiff and appellant claims that he is entitled to a reversal of the judgment of the district court on the ground that the amended answer does not set forth a defense to any of the causes of action alleged in the complaint. This brings us to a consideration of the answer as upon a general demurrer to the whole thereof on the ground just stated. This objection may, no doubt, be raised in this court for the first time; but, in determining it, we must be governed by the same rule that the district court would have been had it been raised there, which is that, if there is any defense contained in the answer, the objection must be overruled. Upon an examination of the amended answer we find that the sixth subdivision thereof is as follows: "For a further and separate defense, avers that the said notes and accounts have been fully paid." This, if true--and it is admitted to be so, for the purposes of this objection--constitutes a full and complete defense to all of the several causes of action set forth in the complaint, and this general objection to the answer as a whole must be overruled.

We now proceed to an examination of the written demurrer interposed in the district court, and to review the decision of that court thereon. The first two subdivisions of the demurrer will be considered together. The language of the demurrer is that several defenses have been improperly united, but the objection urged on the argument is that the second and third paragraphs of the answer are inconsistent with the tenth, and that the sixth and eighth paragraphs are contradictory and inconsistent with each other. And the specifications of the particulars, as contained in the demurrer, clearly show that the real grounds of the objection are based upon an alleged inconsistency between the specified portions of the answer and not upon an improper joinder of defenses. An objection that a pleading contains inconsistent allegations or denials cannot be made by demurrer. The grounds upon which a party may demur are specified and enumerated in the statute, and he must be limited to the statutory grounds. That a pleading contains inconsistent allegations or defenses is not one of these grounds. When this objection exists it should be taken advantage of by motion to strike out, or to require the party pleading to...