Smith v. Marley

• Decision Date: 24 November 1924
• Citation: 230 P. 769,39 Idaho 779
• Parties: W. I. SMITH, Respondent, v. MILTON MARLEY and E. A. MARLEY, Appellants
• Court: Idaho Supreme Court

230 P. 769

39 Idaho 779

W. I. SMITH, Respondent, v. MILTON MARLEY and E. A. MARLEY, Appellants

Supreme Court of Idaho

November 24, 1924

PLEADING AND PRACTICE-SUFFICIENCY OF ANSWER-DENIALS-NEW MATTER-INSTRUCTED VERDICT.

1. Answers are separated by the code into two classes,-denials which serve the sole purpose of raising a direct issue upon plaintiff's allegations; and "new matter," that is, facts different from those averred by the plaintiff, not embraced within the judicial inquiry into the truth of the complaint, but which is defensive and tends to destroy or bar plaintiff's right of action, or states an independent cause of action in favor of defendant against plaintiff, in opposition to a recovery upon plaintiff's demand.

2. A denial, when properly pleaded, does not state any facts but denies facts. A defense of new matter does not deny any facts; it assumes the averments of the complaint to be true and by an express or silent admission admits the truth of the complaint, as far as it goes.

3. Where an answer admits, by failing to deny, the allegations of the complaint, and sets up as new matter a state of facts which, if true, constitute an independent cause of action in favor of defendant and against plaintiff that may be used in opposition to plaintiff's recovery against defendant upon his cause of action, it is error for the court to strike out competent evidence that tends to support the allegations of new matter in the answer and direct a verdict for plaintiff on the ground that the allegations of the complaint are not denied.

4. An instruction which directs a verdict has the same effect as an order sustaining a motion for nonsuit, in that it admits the truth of the adversary's evidence and every inference of fact that may be legitimately drawn therefrom. Its effect is to instruct the jury that there is no evidence to support the claim of the party against whom such verdict is directed.

APPEAL from the District Court of the Fifth Judicial District, for Caribou County. Hon. O. R. Baum, Judge.

Action on title-retaining notes. Judgment for plaintiff. Reversed and remanded.

Reversed and remanded, with instructions.

R. J Dygert, for Appellant.

When property is retaken under a contract or title note, as was done in this case, and the property is turned over voluntarily by the purchaser, the seller is bound to give the purchaser credit for the reasonable value of the property at that time. (See Wright v. Horton, 32 Idaho 516, 185 P. 555.)

C. E. Melvin, for Respondent, files no brief.

WILLIAM A. LEE, J. McCarthy, C. J., and Wm. E. Lee, J., concur, Dunn, J., concurs in conclusion.

OPINION

WILLIAM A. LEE, J.

This is an action to recover a balance upon three title-retaining notes. The pleading on behalf of appellants is entitled "Answer and Cross-complaint." It admits, by failing to deny, all of the allegations of the complaint, and the defense is in the nature of a confession and avoidance, under C. S., sec. 6694, which provides that the answer shall contain: "1. A general or specific denial of the material allegations of the complaint controverted by the defendant. 2. A statement of any new matter constituting a defense or counterclaim," etc.

The answer, in effect, admits the execution of the notes sued upon and the consequent indebtedness that arises therefrom, and sets up, by way of defense, a plea of payment, or satisfaction, of said obligations, alleging that appellants delivered to respondent, and he agreed to accept, all of the chattels for which the notes were given and in addition thereto a threshing outfit, at the reasonable value of such chattels, and that the reasonable value exceeded such indebtedness, and that respondent agreed to pay to appellant such excess. All of the affirmative matter pleaded in the answer was specifically denied by respondent. Upon the issues thus tendered by the pleadings, respondent, on his own behalf, testified that the amounts alleged to be due on the several notes were the correct amounts due and unpaid thereon, and rested. Appellants offered substantial evidence on behalf of their affirmative defense of new matter tending to show that the notes in question had all been fully paid by the surrender of the personal property for which they had been given and also a delivery of a threshing-machine outfit owned by appellants to respondent, and that such machinery and implements had been taken under an agreement between the parties to credit the value of such chattels upon the amounts due on the notes and pay the excess to appellants, and that these chattels so delivered were worth in excess of the indebtedness due on the notes sued upon, $ 364.38, and appellants asked for an affirmative judgment for this amount.

At the close of appellants' evidence respondent moved the court to direct the jury to return a verdict in favor of respondent for the amount demanded in his complaint and for a nonsuit against appellants upon their affirmative plea, for the reason that the material allegations of the complaint are admitted by the pleadings and that the affirmative allegations of the answer or cross-complaint did not state facts sufficient to constitute a cause of action or to entitle appellants to any relief. The court then suggested to respondent that he make an additional motion to strike out the testimony of appellants, which was done, and the court thereupon directed that the record show the motion of respondent was granted, and instructed the jury to return a...