Manning v. Winter

E. Darwin Smith, J.: The plaintiff, in his complaint, claimed to have sold and delivered to the defendants barley malt at and for the price, and of the value of $378.78, for which the defendants agreed to pay. At the trial, the plaintiff gave evidence sufficient, prima facie, to entitle him to recover for 250 bushels of barley malt delivered to the defendants, and rested. The defendants then, under the general denial of their answer, offered to prove the contract under which said barley was delivered, and to show^that it was part of 5,000 bushels of barley malt which the plaintiff had agreed to sell to the defendants; and that, after the delivery of said 250 bushels of said barley, the plaintiff refused to deliver the residue of said barley. The circuit judge held that although the evidence so offered tended to establish a valid defense, yet such defense was not admissible under defendants’ answer of a general denial, and overruled such offer, and directed a verdict for the plaintiff for $413.17, to which ruling and decision-the defendants’ counsel duly excepted. This ruling, I think, was error. The defendants’ proof was simply directed to disprove the plaintiff’s cause of action, and to meet the plaintiff’s evidence. Where a plaintiff shows a part of a transaction or contract, or gives evidence sufficient in respect to it to authorize a vérdict, or to imply a contract, the defendant must be entitled to prove the whole transaction under his general denial, and to show that the plaintiff has no cause of action. Evidence simply directed to repel a presumption, or to show an express contract to displace an implied one, set up and proved, is not evidence to prove new matter. New matter, as this phrase is used in section 149 of the Code, means matter extrinsic to the matter set up in the complaint, as the basis of the cause of action. The defendants in this case sought to show the whole contract between the parties in respect to this barley malt; and that, by the terms and force of such contract, the plaintiff had no right of action. [484] His right to do so, under his general denial of the plaintiff’s cause of action, seems to me quite plain, and is supported, I think, by abundant authorities, among others, by Andrews v. Bond (16 Barb., 633); Schermerhorn v. Van Allen (18 id., 29); Beaty v. Swarthout (32 id., 293); and Boomer v. Koon (13 S. C. N. Y. [6 Hun], 645). The judgment should be reversed, and a new tidal granted with costs to abide the event.