Dole v. Burleigh

• Citation: 46 N.W. 692,1 Dak. 227
• Parties: DOLE v. BURLEIGH.
• Decision Date: 31 December 1875
• Court: Supreme Court of South Dakota

46 N.W. 692

1 Dak. 227

DOLE

v.BURLEIGH.¹

Supreme Court of the Territory of Dakota.

Dec. Term, 1875.

Appeal from district court, Clay county.

Suit on a lost note. Answer: (1) A denial of the “material allegations” of the complaint “in manner and form as therein set forth;” (2) want of consideration; and (3) a counter-claim. The plaintiff offered in evidence a copy of the note, which was objected to on the ground that the proof of loss was insufficient. The objection was sustained. The trial was to the court, and it found for the defendant on the counter-claim, but made no finding on the plea of want of consideration. Judgment was entered for the defendant, and the plaintiff appealed.Wm. Pound and J.R. Gamble, for appellant. G.C. Moody, for appellee.

BARNES, J.

The first point made by the appellant is that the court below erred in refusing to allow a copy of the alleged lost note or the contents of the note to be given in evidence. That the evidence of the loss was sufficiently established to make this evidence competent, I have no doubt. But I am entirely unable to discover that the plaintiff was prejudiced by its rejection. To properly understand this question, we must advert to the pleadings. The complaint, it will be observed, alleges the making and delivery of the note by the defendant to the plaintiff for a valuable consideration. It also alleges the loss of the note by the plaintiff prior to the commencement of this suit, and at the time of its loss it was not indorsed by the plaintiff. It is well here to note the fact that every material allegation of that complaint, not denied, is admitted for all purposes connected with this suit. The logical deduction then is this: If the loss of the note is admitted, not being denied, then the evidence offered of the loss of the note and its contents was merely cumulative, and it will not seriously be insisted that the rejection of cumulative evidence of a fact admitted upon the record would be error. This suggests the inquiry, does the answer controvert any material allegation of the complaint, except the want of consideration for the note? If not, the plaintiff was entitled to recover without the introduction of any testimony on his part; the want of consideration being a matter of defense. The respondent claims that the first paragraph of his answer, in the words following, is a general denial of every material allegation of the plaintiff's complaint: “The above-named defendant, Walter A. Burleigh, for answer to the complaint of the above-named plaintiff herein, says that he denies each and every material allegation thereof in manner and form as therein set forth.” This is not a denial of the allegation in the complaint. The words, “in manner and form as therein set forth,” qualify the preceding language, so that the denial only refers to the manner and form in which the plaintiff has stated his cause of action, and not to the substance of the allegations in the plaintiff's complaint. This paragraph of the answer is clearly frivolous, and would have been struck out on motion, and judgment awarded to the plaintiff upon the pleadings, except that other portions of the answer and the reply present other issues. An answer which denies that the defendant made the promise in manner and form as alleged in plaintiff's complaint is but the assertion of a conclusion of law from certain facts. Hendricks v. Decker, 35 Barb. 298. Tiff. & S. Pr. 37: “A general denial must be certain and positive.” Tiffany then gives the following form: “The defendant denies each and every allegation of the plaintiff's complaint.” Id. 369. I am aware there is a conflict of authorities as to whether using the word “material” in the denial would make the answer frivolous. There are authorities that hold that a denial in the following form is good: “The defendant denies each and every material allegation of plaintiff's complaint.” I am unable to find one decision that will uphold or sustain the form of denial used by the pleader in this case.

Robbins v. Lincoln, 12 Wis. 1: A denial in the language of the complaint is not sufficient. It must be of the substance of the allegations of the complaint.

A denial of the indebtedness, without denying the alleged fact out of which the indebtedness arose, is merely a denial of a legal conclusion. Davison v. Powell, 16 How. Pr. 467;Risto v. Harris, 18 Wis. 400;Runals v. Brown, 11 Wis. 186. A denial in an answer in the words of the complaint is not good. It is a negative pregnant with an admission that the alleged facts may have transpired on some other day or under different circumstances. Schaetzel v. Insurance Co., 22 Wis. 412;Holden v. Kirby, 21 Wis. 149;Edson v. Dillaye, 8 How. Pr. 273. Under the Code a party may set up as many defenses as he chooses, but he cannot, by making repugnant allegations, compel the plaintiff, in order to avoid a denial in one part of the answer, to prove a fact admitted in another. The object of the Code was to compel the defendant to admit every part of the plaintiff's complaint which he could not conscientiously deny. Therefore any fact sustaining the plaintiff's case admitted in one part of the answer is to be taken as true for all purposes in the case, and the plaintiff is not bound to prove it. In this case the answer is a general denial; second, a justification; and it is held not well pleaded. Hartwell v. Page, 14 Wis. 49. Viewed in the light of these...