Prestin v. Baumgartner, 283
| Decision Date | 26 June 1970 |
| Docket Number | No. 283,283 |
| Citation | 177 N.W.2d 825,47 Wis.2d 574 |
| Parties | Norma E. PRESTIN, Respondent, v. Donald W. BAUMGARTNER, Appellant. |
| Court | Wisconsin Supreme Court |
This action for repayment of a note 1 was commenced by Norma E. Prestin against her son-in-law Donald W. Baumgartner. In pertinent part the plaintiff's complaint alleged:
'3. That heretofore and on December 2, 1957, for value received, to-wit: money loaned by the plaintiff to the defendant, said defendant made, executed and delivered a written instrument under seal promising to pay on demand the sum of two-thousand dollars ($2,000.00); photostatic copy of which instrument is hereto attached, made part hereof, and marked Exhibit A.
'4. That the defendant has failed and neglected to pay the said sum, or any part thereof, although due demand has been made therefor, and that there is now due and owing from the defendant to the plaintiff the sum of two-thousand dollars ($2,000.00), with interest thereon.
'WHEREFORE, plaintiff demands judgment against the defendant in the sum of two-thousand dollars ($2,000.00), with interest, costs and disbursements of this action.'
In answer to these allegations the defendant, after denying knowledge or information sufficient to form a belief as to the plaintiff's residence, alleged as follows:
'3. Answering Paragraph 3, admits that at times material defendant executed a written instrument as alleged but denies that said defendant received the sum of Two Thousand and no/100 ($2,000.00) Dollars and further denies that plaintiff loanded money to the said defendant as alleged or otherwise.
'4. Answering Paragraph 4, denies that plaintiff has made due demand upon defendant as alleged; further answering Paragraph 4, denies that there is now due and owing from the defendant to the plaintiff the sum of Two Thousand and no/100 ($2,000.00) Dollars with interest thereon.
'WHEREFORE, defendant demands judgment dismissing the complaint of the plaintiff upon the merits, together with costs and disbursements.
Pursuant to sec. 889.22, Stats., the plaintiff then served upon the defendant a demand to admit or refuse to admit that the plaintiff's place of residence was as shown in the complaint, that the document attached to the complaint was a true and correct copy of the note which bore the signature of defendant and that defendant owed $2,000 to the plaintiff. In response to this demand the defendant submitted his refusal to admit.
Subsequent to this refusal to admit and prior to commencement of trial the plaintiff moved for judgment on the pleadings. This motion was taken under advisement and a trial was had to a jury. Following the jury's failure to agree upon a verdict, the plaintiff moved for a directed verdict. The trial court dismissed the jury and later ordered judgment on the pleadings for the plaintiff. In so doing the trial court held that the defendant's answer was insufficient to rebut the essential allegations of the plaintiff's complaint and thus failed to raise issues of fact. The trial judge also refused to accept defendant's contention that he had inferentially pleaded the affirmative defense of either gift or failure of consideration and noted that even if the plaintiff was not entitled to judgment on the pleadings, the evidence at trial was such as to entitle her to a directed verdict. The defendant now appeals from the order allowing judgment on the pleadings.
Alexander N. Rubin, Milwaukee, for appellant; Walter F. Gregorski, Milwaukee, of counsel.
Ray T. McCann, Milwaukee, for respondent; Leonard L. Loeb, Milwaukee, of counsel.
The sole issue on this appeal is as follows: Was the defendant's answer sufficient either to negate the essential allegations of the plaintiff's complaint or to raise an affirmative defense thereto?
The plaintiff's contention here, as in the trial court, is that the defendant's answer was comprised of negative pregnants and was insufficient to place the allegations of the complaint in issue. 2
Negative pregnants occur in responsive pleadings where, as in the instant answer, the denials are stated in the very words employed in the complaint. Such denials were condemned by this court as early as Schaetzel v. Germantown Farmers' Mut. Ins. Co., supra, because they are pregnant with alternative admissions to the allegations of the complaint. An examination of the denials contained in defendant's answer reveals that, although they are not framed in the exact words of the complaint, the similarity is indeed striking. The most crucial shortcoming of the defendant's answer, however, is its admission that he executed the written instrument, which was under seal, yet failed to allege an affirmative defense to its collection.
Under sec. 891.27, Stats., a seal upon an executory instrument is presumptive evidence of sufficient consideration. See: Estate of Cortte (1939), 230 Wis. 103, 106, 283 N.W. 336; Spankus v. West (1936), 222 Wis. 238, 267 N.W. 910. It is defendant's contention on this appeal that denial of the receipt of the $2,000 and denial that a loan was made constitute the inferential allegation of gift as a defense. In support of this contention, he relies upon sec. 263.27, Stats., which states:
While it is true that pleadings are to be liberally construed, sec. 263.13, Stats., states: 'The answer of the defendant must contain:
'(1) * * *
'(2) A statement of any new matter constituting a defense, in ordinary and concise language, without repetition.' (Emphasis supplied.)
Sec. 163.16, Stats., further requires that:
'The defendant may set forth, by answer, all defenses * * * he has, whether legal or equitable, or both; they must be separately stated.' (Emphasis supplied.)
As a defense, the claim that money was given as a gift is closely akin to the defense of lack of consideration. When claiming lack of consideration, one would assert that he received nothing in consideration for his promise to pay a sum of money, while, when claiming...
To continue reading
Request your trial
-
Prior v. Rathjen
...363, 364, 32 N.W. 383; Stucksleger v. Smith, 27 Iowa 286, 287; Sheldon, Hoyt & Co. v. Middleton, 10 Iowa 17, 19; Prestin v. Baumgartner, 47 Wis.2d 574, 177 N.W.2d 825, 827--828. But recently some courts and text writers have tended to look with disfavor on this doctrine. In so doing they ta......
-
Potts on Behalf of Estate of Gavcus v. Garionis
...Co., 58 Wis.2d 472, 484, 207 N.W.2d 80, 86 (1973), for the list of elements. Hoffman in turn relied on Prestin v. Baumgartner, 47 Wis.2d 574, 579, 177 N.W.2d 825, 828 (1970), and Peters v. Peters Auto Sales, Inc., 37 Wis.2d 346, 350, 155 N.W.2d 85, 87 (1967), for their recitation of the ele......
-
Lichter v. Fritsch
...Bydalek, 56 Wis.2d 772, 775, 203 N.W.2d 15 (1973).17 52 Wis.2d 405, 409, 190 N.W.2d 164, 166 (1971), quoting from Prestin v. Baumgartner, 47 Wis.2d 574, 579, 177 N.W.2d 825. ...
-
Hoffmann v. Wausau Concrete Co., 298
...to the donee. 3. Termination of the donor's dominion over the subject of the right. 4. Dominion in the donee. Prestin v. Baumgartner (1970), 47 Wis.2d 574, 579, 177 N.W.2d 825; Peters v. Peters Auto Sales, Inc. (1967), 37 Wis.2d 346, 350, 155 N.W.2d In addition, we disagree with the plainti......