Neely v. Bair

Opinion, Mr. Justice Sterrett : In his statement of claim, verified by affidavit, the plaintiff avers, in substance, that', as administrator of Thomas Neely, deceased, he sold and delivered to defendant, on June 26,1884, “ one black horse, of the price and value of $425, and one top wagon or buggy,” etc., “ of the price and value of $155; ” that these were the prices agreed upon between the parties at the [255] time of the sale and delivery of said property; that the defendant, though legally bound and liable to pay the plaintiff the said sums of money, according to the terms of said sale and delivery, bas refused and still refuses to pay the same, or any part thereof, except the sum of $69.74 which he paid on August 12,1890; that there are no items of credit on said claim or account to which the defendant is entitled, excepting as above stated; and that the remainder of said sums, with interest from June 26, 1884, still remains due and unpaid. To this is appended a statement showing “ balance due August 18,1890, $698.03,” to recover which this suit is brought. This statement and affidavit of claim having been duly served, as required by rule of court, the defendant filed an affidavit of defence in the nature of confession and avoidance of the cause of action set forth in plaintiff’s statement. He says that on the twenty-sixth day of June, 1884, “ the plaintiff, as one of the administrators of the said Thomas Neely, sold to the defendant the said black horse, buggy, buggy tongue and set of harness, mentioned in said plaintiff’s statement, for the respective prices therein set forth,” but, by way of avoidance of the liability springing from this explicit - admission, he immediately adds, “ upon the clear, distinct, and express contract and agreement, made and entered into by and between the said John Neely, as one of said administrators, and this defendant, at the time of said sale, that the purchase money for said black horse, buggy, buggy tongue and set of harness, mentioned in said plaintiff’s statement and amounting in the aggregate to $580, should be appropriated and applied to the full payment, satisfaction, and extinguishment of the said defendant’s individual account of $510.26 against the said Thomas Neely,” etc. It is true he avers, in the beginning of his affidavit, that “ he has a just, legal, and complete defence to the whole of the plaintiff’s claimand in the concluding sentence he avers “ that he does not owe and is not indebted to the said John Neely, either individually, or as one of the administrators of the said Thomas Neely, deceased, for said horse, buggy, buggy tongue and set of harness, or for any one of said pieces of property, or for the purchase money therefor, or for any part or portion thereof.” These averments are, of course, referable solely to the defence set up in avoidance of the liability resulting from the undisputed [256] fact that the property was sold and delivered to defendant at the time and for the consideration mentioned. It cannot be pretended that they refer to anything else. If the defence thus disclosed were presented in the form of a special plea, it would be a confession of plaintiff’s cause of action, coupled with allegations of fact in avoidance thereof, —a plea in confession and avoidance, under which the onus probandi would be on the defendant. On the trial, plaintiff claimed that, under the rule of court, the facts upon which his claim was based were, in effect, admitted, and that he had a right to rest. upon that admission until evidence in avoidance thereof was introduced by defendant. The learned court thought otherwise, and finally entered judgment of nonsuit, which it afterwards refused to take off. Hence this apxjeal. The rule referred to is as follows: “ 11. If the plaintiff shall file with his declaration or statement a Specific averment of facts sufficient to support his claim, verified by affidavit, and serve a copy on the defendant or his counsel of record, such items of claim and material averments of fact as are not denied by the defendant, by affidavit filed with or before plea pleaded, shall be taken as admitted.” ^ The object of this and similar rules of court, obviously, is to dispense with the formal proof, on trial, of all such facts and circumstances, material to the plaintiff’s case, as the defendant shall be required to deny under oath, which facts, if not so denied as required by the rule, shall, for the purposes of trial, be taken as admitted. A proper system of practice under such rules greatly facilitates and expedites the trial of causes, and often relieves the jury from the consideration of a heterogeneous mass of testimony bearing upon facts which the defendant cannot deny, but which plaintiff would otherwise be required to establish by formal proof. The controversy is thus narrowed down to such items of claim and material matters of fact as are really disputed. In such cases, it is the province of the court to examine the respective affidavits, and thus ascertain what items of claim, and averments of fact in support thereof, are not denied by defendant, and then confine the testimony to such items of claim and material averments of fact as are denied. I have known cases in which the items of claim were as many as twenty or more, and the averments of fact in support of them [257] even more numerous. On examination of the verified statement of claim and affidavit of defence, it would perhaps be found that a very small percentage of these was denied. All that is necessary, in such cases, is to confine the testimony to such material averments of fact as are denied by defendant’s affidavit; and, in submitting the case to the jury, to call their attention to the items of claim and averments of fact that are not denied, and should therefore be accepted as established, and instruct them as to those that are denied, etc. The “ specific averment of facts ” contemplated by the rule need not be separate and distinct from the plaintiff’s statement of claim. If the latter is as full and as specific as it should be, it will answer all the purposes of a separate specific averment of facts, under the rule of court. The subject of complaint in the first specification of error is the rejection of the plaintiff’s offer to show, by the plaintiff’s statement, filed under the rule above quoted, and the defendant’s affidavit, the sale, delivery, and price of the property. The offer shows that the attention of the court was called to the fact that neither the sale, nor the price of the property sold and delivered by the plaintiff to the defendant, as averred in the statement of claim, was denied, and that plaintiff proposed to rest upon the admission under the provisions of the rule. This was specially objected to because “the affidavit of defence, which is necessary in order that the court may determine what material points have been denied by the defendant,” etc., was not offéred in connection with plaintiff’s statement. The objection was met by an offer of the affidavit of defence in connection with plaintiff’s statement, “ for the purpose of showing that the defendant has not denied the sale or price of the goods sold.” Of course, this offer was to the court, and was doubtless so understood by the learned judge who presided at the trial. His reason for ruling against the plaintiff, as stated by himself, was “ that the material matters, set forth in the plaintiff’s statement, entitling him to recover in the case, are sufficiently denied to put the plaintiff upon proof.” In this he was clearly in error. Why put the plaintiff upon proof of the sale and delivery of the horse and other articles specified in plaintiff’s statement, when, as we have already seen, the fact of the sale, including price and delivery, as claimed by plaintiff, is not only undenied, [258] but distinctly admitted by the defendant. The averment of “ complete defence,” denial of liability, etc., are referable to the defence set up by way of avoidance. . As well might the plaintiff, in an issue on a formal plea in confession and avoidance, be required to make out a prima-facie case by calling witnesses to prove the very matters confessed. Suppose, in a suit on an ordinary promissory note, the defendant has filed a verified statement, averring the making and delivery of the note by the defendant, etc., and the latter, in his affidavit of defence, admits the making and delivery of the note as alleged, but avers that at the time it was so made and delivered it was expressly agreed that it should be paid in merchandise on or before its maturity, that payment in merchandise was duly tendered, etc., and that he is not indebted to the plaintiff, etc. What propriety would there be in requiring the plaintiff to make out his case by testimony showing the making and delivery of the note ? Such a construction of a wise and salutary rule would not only needlessly impair its usefulness, but it would have nothing, either in reason or authority, to sustain it. It follows from what has been said, that the plaintiff had a right to avail himself of the defendant’s admissions, under the rule, of the sale and delivery of the horse and other articles as averred, and rest upon the same until something, by way of defence, was shown by the defendant. It is suggested that plaintiff had no right to sue in his individual capacity. The ruling of the court was not based on any such ground, and we express no opinion in regard to it. The plaintiff was improperly nonsuited, and of course, the refusal to take off the nonsuit was errbr. Both specifications are sustained.. Judgment reversed, and procedendo awarded.