D.C. Acc. Ass'n v. Rockey

• Decision Date: 19 November 1896
• Parties: COLUMBIA ACC. ASS'N v. ROCKEY.
• Court: Virginia Supreme Court

25 S.E. 1009

93 Va. 678

COLUMBIA ACC. ASS'N

v.ROCKEY.

Supreme Court of Appeals of Virginia.

Nov. 19, 1896.

Pleading—Statement OF Particulars—Defense Admissible under General Issue.

1. A statement of particulars. of a cause of action or ground of defense which may be required by the court to be filed under Code, § 3249, is not a pleading forming an issue to be tried, and is not subject to demurrer, but is intended only to inform the adverse party, and can be attacked for insufficiency only when it fails to set out the particulars of the claim or defense sufficiently for that purpose.

2. The object of the act of 1831 (Code, 5 3299) permitting a defendant in an action at law to plead an equitable set-off by a special plea was to enlarge the right of defense, and it does not take away any right then existing; and the defense of failure of consideration can be made under the general issue, the same as before the statute was enacted.

3. in an action on a contract of employment, to recover salary, evidence to prove a condition of the contract by which the liability of the defendant was to depend on a contingency which never happened is admissible in defense under the general issue.

Appeal from hustings court of Staunton;, Charles Grattan, Judge.

Action by one Rockey against the Columbia Accident Association. Judgment for plaintiff, and defendant appeals. Reversed.

White & Ker, W. E. Craig, and T. K. Hack man, for appellant.

A. C. Braxton, for appellee.

RIELY, J. it is unnecessary, in disposing of the writ of error in this case, to notice any of the proceedings prior to the mistrial at the September term, 1894. After the mistrial, the defendant, being required to file a statement of the particulars of its ground of defense, as the court, on the motion of the plaintiff, had previously directed it to do, tendered the plea of non assumpsit, which was filed without objection. it also tendered, then and subsequently, four statements, as containing the particulars of its grounds of defense. These statements were unnecessarily prolix, and possessed much of the formality of regular pleas. The third of these statements admitted that the defendant had contracted with the plaintiff to pay him, as its general manager, the salary for which he had sued, but that he had so un-skillfully and improperly managed its business, through neglect, and improper disagreements with certain named persons, that he had injured its business, and had not earned his salary. The first, second, and fourth of the said statements are really one, in substance, and may be jointly considered, as presenting a single, and the same, ground of defense. They set forth, in substance, that the agreement to pay him a salary was a conditional contract; that he was a promoter of the company, and had agreed with it that, in consideration that it would pay him a salary of $2,500 per annum, its business would be so conducted that his salary would be paid from the profits of the business, and the one-half of its capital which had been dedicated as a fund for the conduct of its business, the other half of its capital being set apart as a reserve fund to meet losses by death, or other extraordinary demands; that, if the business was not so conducted that his salary could be paid from the sources named, he would not charge any salary; and that the part of its capital so dedicated to run its business had been consumed; and that there were no profits of the business, so that in fact the company owed him nothing. Each of these state-ments was objected to by the plaintiff, and was rejected by the court.

Before considering the propriety of the action of the court, it will be proper to advert to the statute under whose authority the statements were required to be filed. The object of the statute (section 3249 of the Code) was simply to give to the defendant more definite information of the character of the claim of the plaintiff than very often appears from his declaration or notice, and also to give to the plaintiff more particular Information of the ground of defense than is generally disclosed by a plea, so as to enable the parties to prepare more intelligently for the trial, and to prevent surprises which may, and often do, result in injustice. The statute was enacted in the interest of justice, and is one of the most serviceable statutes we have for its attainment. But such statement does not constitute the issue to be tried, and it was never intended that the particulars of the claim or ground of defense should be set forth with the formality or precision of a declaration or plea, but only in such manner, however informal, as would fairly and plainly give notice to the adverse party of its character, where the same was not so described in the notice, declaration, or other pleading. The statement is not the subject of a demurrer, but the proper practice is, if it is deemed insufficient, to move the court to require a sufficient statement. George Campbell Co. v. Angus, 91 Va. 438, 22 S. E. 167. if the court should be of opinion that the statement filed is insufficient to inform the adverse party of the particulars of the claim or ground of defense, it should require a further and sufficient statement to be filed, and, if not furnished, "exclude evidence of any matter not described in the notice, declaration, or other pleading of such party, so plainly as to give the adverse party notice of its character." Such statement may or may not disclose a legal claim, or constitute a defense at law. if it does not, the proper practice is to move the court, on the trial of the issue, —if tried by a jury, —to exclude any evidence offered in respect to the matter contained in such statement, or, if the evidence has been admitted, to move the court to strike it out, or to correct its effect by appropriate instructions.

The objection made to the third statement was twofold: First, that it set up the defense of failure of consideration, which, it was claimed, could only be done by a special plea of equitable set-off, under section 3299 of the Code, verified by affidavit; and that the statement neither conformed to the requirements of the statute, nor was it sworn to. This raises an important question, that was much discussed at the bar. it was contended by counsel for the plaintiff that whatever may have been the law prior to the act of 1831, which was the original of section 3299 of the Code, it has not been competent, since its enactment, to make the defense of failure of consideration, except by a special plea under that statute, verified by affidavit. it was entirely competent, prior to the said statute, according to the practice at common law, to prove, under the plea of non assumpsit, a want of consideration for the promise, or failure or fraud in the consideration, and, in short, with a few well-understood exceptions, to prove whatever showed that there was no existing debt due. 4 Minor, Inst. (3d Ed.pt. 1, pp. 770, 774, 793; Tyler, Steph. PI. 176;

1 Chit. PI. (16th Ed.) 495; 5 Rob. Prac. 264-278; 2 Tuck. Comm. 160; Withers v. Greene, 9 How. 213; Van Buren v. Digges, 11 How. 461; Winder v. Caldwell, 14 How. 434; Bierly v. Williams, 5 Leigh, 700; Todd v. Summers,

2 Grat. 108; and Insurance Co. v. Buck, 88 Va. 517, 13 S. E. 973. But while a defendant, under the plea of non assumpsit, might give evidence of matter by way of recoupment, or in...