New Idea Pattern Co. v. Whelan

• Citation: 75 Conn. 455,53 A. 953
• Parties: NEW IDEA PATTERN CO. v. WHELAN.
• Decision Date: 30 January 1903
• Court: Supreme Court of Connecticut

53 A. 953

75 Conn. 455

NEW IDEA PATTERN CO.

v. WHELAN.

Supreme Court of Errors of Connecticut.

Jan. 30, 1903.

Appeal from court of common pleas, Litchfield county; Gideon H. Welch, Judge. Action by the New Idea Pattern Company against Matthew "V. Whelan, before a justice of the peace, who gave judgment for the plaintiff. Appeal by defendant to the court of common pleas, tried to the court. Judgment for plaintiff for less than its demand, and appeal by plaintiff. Error.

William H. McMorris, for appellant.

Walter Holcomb, for appellee.

BALDWIN, J. The complaint is for goods sold and delivered at an agreed price, in successive months, upon the defendant's promise to pay on or before the 1st day of each month for those sold in the month preceding. The goods specified were mainly patterns and a pattern rack. The answer, in a first defense, admitted that the defendant had received the goods, invoiced to him at the prices alleged, but denied any sale. In a second defense he stated that on or about January 10, 1901, he entered into a contract with the plaintiff, partly in writing and partly by parol, whereby (1) the plaintiff promised to supply him with goods of the kind specified in the complaint at the prices alleged, and furnish a catalogue of the same; (2) the pattern rack was to be supplied free of charge; and (3) the plaintiff was to take back all patterns that were out of date, and give credit for them in account, sending an agent to cull out such patterns for that purpose,—but that no such agent was sent, nor any credit given for such culls, nor any catalogue furnished, by reason of which he had been greatly damaged, wherefore he asked judgment for $100. A reply was filed, stating that on December 10, 1900, the defendant executed and delivered to the plaintiff a written order, a copy of which was annexed, and marked "Exhibit A," for the goods mentioned in the complaint, at the prices stated, in pursuance of which order they were sold and delivered. There was no rejoinder.

A motion for an order for a separation of the matters of defense and counterclaim in the second defense was overruled by the court of common pleas because it did not specify in what respects this pleading was erroneous, and how it should be corrected. The motion was sufficiently specific, and should have been granted. A counterclaim, when pleaded in an answer, must be pleaded "as such," and after the matters of strict defense. Gen. St. § 612; Practice Book, forms 356, 444. The second defense contained many averments which, if material, were matters of defense. Some of these might also furnish support to a counterclaim. The concluding prayer for damages could only be appropriate as part of a counterclaim. But a demand of judgment alone does not constitute a counterclaim. It is of no avail unless, either directly or by reference to what has been previously pleaded, it is supported by averments of fact which, if true, would justify such a judgment. It was the duty of the defendant to make such averments, unaided by the plaintiff.

No denial having been interposed to the reply, the execution and delivery of the written order, Exhibit A, were admitted. Rules of Court, § 158. This exhibit was not in fact annexed to the reply, and no copy of it was furnished to the defendant until the time of the trial before the justice of the peace. These facts did not render it any the less a part of the plaintiff's pleading. If it had been referred to in the complaint, it would, under the rule, have been unnecessary to annex it. Rules under Practice Act, § 141. The reason of this rule applies to subsequent pleadings. If the adverse party desires to inspect an exhibit pleaded as annexed, but not annexed in fact, his remedy is by motion to the court.

Exhibit A was a printed order blank, filled up with an order for all the goods described in the complaint, at the prices alleged. On the trial in the court of common pleas, after it had been put in evidence, the defendant, as a witness in his own behalf, was asked what conversation, if any, Barry, who, as agent for the plaintiff, procured the order, had with...