Gardner v. McWilliams

• Citation: 69 P. 915,42 Or. 14
• Parties: GARDNER v. McWILLIAMS.
• Decision Date: 11 August 1902
• Court: Supreme Court of Oregon

69 P. 915

42 Or. 14

GARDNER v. McWILLIAMS.

Supreme Court of Oregon

August 11, 1902

Appeal from circuit court, Douglas county; J.W. Hamilton, Judge.

Action by John W. Gardner against D.C. McWilliams. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover money. It is alleged in the complaint that plaintiff pastured certain horses and cattle for defendant at his request from September 1, 1900, to March 6 1901, for which he promised to pay a reasonable sum; that such pasturage was reasonably worth $261.02, no part of which has been paid. For a second cause of action, it is alleged that about December 15, 1900, plaintiff loaned defendant $8.50, which he promised to pay the next day, but that he failed to pay any part thereof. The answer, having denied the material allegations of the complaint, alleged as a separate defense to the first cause of action that about August 29 1900, defendant demised to plaintiff, for the term of one year, certain land in Douglas county, for the use of which the latter agreed to pay the sum of $275 per annum stipulating to take good care of the premises and of the buildings and improvements thereon, and to surrender the property at the termination of the lease in as good condition as when received, the usual wear and decay and the destruction thereof by the elements alone excepted; that, as part of the consideration for said lease, it was agreed that plaintiff should permit defendant's stock to roam upon the demised premises until April 1, 1901, without expense to him, and, in pursuance thereof, said stock, which comprises the horses and cattle described in the complaint, were left on the leased land until March 7, 1901. "Defendant, for a second, separate, and further answer to the complaint herein, here repeats the first separate answer herein, and makes the same a part of this answer, and further alleges," in substance, that plaintiff broke the covenants in said lease to be kept and performed by him, in that he made a hogpen out of the cellar, injuring it, and destroying a milk safe therein; that he removed a fence inclosing an orchard, allowing the hogs and cattle to run therein, breaking down the branches, and killing many of the trees; that he defaced the dwelling on said premises by knocking holes in the plaster, and by tearing off the paper and lining in some of the rooms,--to defendant's damage in the sum of $495. The court, upon plaintiff's motion struck out the second separate defense, on the ground that the facts alleged therein were not separately stated, and, the defendant having declined to amend his answer, a reply put in issue the remaining allegations of new matter therein. The trial resulted in a judgment for plaintiff in the sum of $198.50, and defendant appeals.

John T. Long, for appellant.

Dexter Rice, for respondent.

MOORE C.J. (after stating the facts).

It is contended by defendant's counsel that the reference in the second separate defense to the facts thereinbefore stated in the answer was an allusion to matters of inducement only which were thus properly incorporated in, and became a part of, the second separate defense, and that, this being so, the court erred in striking out the latter defense. The statute prescribing the manner of averring new matter in an answer, so far as material herein, is as follows: "The defe...