Crane Bros. Manufacturing Company v. Morse

• Decision Date: 11 May 1880
• Parties: CRANE BROS. MANUFACTURING COMPANY v. MORSE
• Court: Wisconsin Supreme Court

5 N.W. 815

49 Wis. 368

CRANE BROS. MANUFACTURING COMPANY v. MORSE

Supreme Court of Wisconsin

May 11, 1880

Argued April 26, 1880

APPEAL from the County Court of Winnebago County.

On motion, the county court struck out the defendant's answer as frivolous, and gave judgment for the plaintiff. This is an appeal by the defendant from the judgment. The complaint (which is in the usual form) is upon an account for goods sold, attached thereto as an exhibit. The corporate character of the plaintiff, and an express agreement by the defendant to pay interest on the account after a certain time, are alleged. The answer is as follows:

"1. Defendant denies that he is indebted to the plaintiff in manner and form as alleged in his complaint.

"2. Defendant has no knowledge or information sufficient to form a belief concerning the allegations in plaintiff's complaint that the plaintiff herein is a corporation duly organized and existing under and by virtue of the laws of the state of Illinois, and therefore denies the same.

"3. Defendant denies all that part of plaintiff's complaint contained in folio 3, relating to interest and the payment thereof; that no agreement in writing was ever made by this defendant to pay interest on sale of goods and merchandise after thirty days from the sale thereof.

"4. The defendant herein has no knowledge or information sufficient to form a belief concerning the allegations in plaintiff's complaint that the plaintiff is now the lawful owner and holder of the account attached to his said complaint."

Judgment affirmed.

For the appellant there was a brief by A. G. Randall, and oral argument by C. D. Cleveland.

The cause was submitted for the respondent on the brief of Henry Bailey.

OPINION

WILLIAM P. LYON, J.

The answer is clearly frivolous. First. The first defense pleaded is nil debet, which is entirely inappropriate to an action of assumpsit, and may always be treated as a nullity when pleaded in such an action. 1 Chitty's Pl. (7th Eng. ed.), 548. Second. The corporate character of the plaintiff is not specifically denied, as required by the statute. R. S., 1012, sec. 4199. A denial of knowledge or information thereof sufficient to form a belief falls far short of such a denial. Hence the answer raises no issue in that behalf. Third. The denial that the defendant agreed in writing to pay interest on the account, is not responsive to the allegation in the complaint...