Rock Spring Coal Co. v. Salt Lake Sanitarium Ass'n

• Decision Date: 20 January 1891
• Citation: 25 P. 742,7 Utah 158
• Court: Utah Supreme Court
• Parties: ROCK SPRING COAL COMPANY, RESPONDENT, v. SALT LAKE SANITARIUM ASSOCIATION, APPELLANT

25 P. 742

7 Utah 158

ROCK SPRING COAL COMPANY, RESPONDENT, v. SALT LAKE SANITARIUM ASSOCIATION, APPELLANT

Supreme Court of Utah

January 20, 1891

APPEAL from a judgment of the district court of the third district and from an order overruling a motion for a new trial. The opinion states the facts.

Affirmed.

Mr. C F. Loofbourow, for the appellant.

Mr Edward B. Oritchlow, for the respondent.

MINER J. ANDERSON, J., and BLACKBURN, J., concurred.

OPINION

MINER, J.:

On April 3, 1890, the plaintiff filed in the third district court in Utah its complaint, alleging: "(1) The corporate capacity of both plaintiff and defendant. * * * (3) That between the 9th day of November, 1889, and the 6th day of February, 1890, the plaintiff sold and delivered to the defendant * * * * coal of the kinds and in the amounts specified, as follows, to-wit: 88,700 pounds of lump coal; 218,500 pounds of slack coal in wagon-load lots; 256,600 pounds of slack coal in car-load lots. That defendant agreed to pay for the same as follows, to-wit: * * * $ 788.05." That payment has been demanded. That no part thereof has been paid, and the whole remains due; and praying judgment for $ 788.05, with interest and costs. The defendant filed its answer: (1) Admitting that it is a corporation. (2) Denying that the plaintiff is a corporation. "(3) Further answering, the defendant avers, on information and belief, that it is not true that plaintiff, between the 9th day of November, 1889, and the 6th day of February 1890, sold and delivered to defendant 88,700 pounds of lump coal, or that plaintiff between said dates sold and delivered to defendant 281,500 pounds of slack coal in wagon-load lots; and defendant therefore denies that between the 9th day of November, 1889, and the 6th day of February, 1890, or at any other time, the plaintiff sold and delivered to the defendant 88,700 pounds of lump coal, and denies that between said dates, or at any other time, plaintiff sold and delivered to defendant 218, 500 pounds of slack coal in wagon-load lots. Also alleges payment of $ 88.20 on account of claim sued upon." The cause was tried before the court, a jury being waived. At the commencement of the trial, and before the production of any evidence, the plaintiff made an oral motion and request for judgment upon the pleadings on account of the alleged insufficiency of the defendant's answer to put in issue any of the allegations of the complaint. Whereupon the court ruled and held, upon said oral motion and request of plaintiff, that the answer of the defendant was not sufficient to put in issue any allegation of the complaint, except that of the corporate capacity of the plaintiff, and gave defendant permission to amend his answer so as to deny each allegation in its complaint, and defendant refused to avail itself of this privilege. And the court thereupon, and upon said trial, took all the other allegations of the complaint as confessed by the defendant, and made its findings of fact, and gave judgment for the plaintiff for $ 802.40, and costs taxed at $ 33.35. The defendant alleges error on the above ruling, and appeals to this court from an order denying a motion for a new trial on such alleged error.

It will be observed that in the answer it is averred, on information and belief, "that it is not true that plaintiff, between the dates named, sold and delivered to the defendant 88,700 pounds of lump coal," but it is nowhere denied that some other kind of coal, or some amount of lump or other coal, was sold and delivered to the defendant; and the attempted specific denial, that plaintiff sold and delivered to defendant 218, 500 pounds of slack coal in wagon-load lots, is not a denial that 218,500 pounds, or any less number of pounds, of coal were not sold and delivered to defendant, nor that 218,500 pounds of coal were not delivered defendant in cars or carts or by hand, or in some other way than by wagon-load lots; nor is any attempt made to deny it sold and delivered defendant 256,600 pounds of slack coal in car-load lots or otherwise. It does not appear by the answer that defendant did not receive the stated amount of coal from the plaintiff, or that it was not indebted to the plaintiff therefor. What the answer does say is simply this: "I received from the plaintiff, within the time stated, the amount of coal he has charged me with, for which I agreed to pay him the price named in the complaint, but it was not delivered to me in the wagon-load lots; and I am still indebted to the plaintiff therefor in the sum claimed in the complaint, less $ 80.20, which I have paid plaintiff on the claim sued upon prior to the commencement of the suit." In other words, defendant admits the allegations in the complaint to be true, and that he is indebted to the plaintiff for the coal as claimed.

Section 3226 of the Compiled Laws of Utah of 1888 provides that the answer of defendant shall contain a general or specific denial of the material allegations of the complaints controverted by the defendant; and if the complaint be verified, as in this case, "the denial of each allegation controverted must be specific, and be made positively," etc. Counsel for the defendant relies on Mahana v. Blunt, 20 Iowa 142; Doolittle v. Greene, 32 Iowa 123; Bank v. Hogan, 47 Mo 472; Ells v. Railroad Co., 55 Mo. 278; and Wall v. Water-Works Co., 18 N.Y. 119. I am aware that, under the statutes and decisions of Iowa and Missouri, slight innovations have been made upon this rule, but the general weight of authority sustains it. In 18 N.Y....