Granger v. Ilsley

Bigelow, J. According to the recent decision of this court in Dixie v. Abbott, 7 Cush. 610, a defendant, under the old rules of practice, which required him to specify only matters in discharge or avoidance of the action, might, in an action of indebitatus assumpsit for goods sold, give in evidence, under the general issue, without any specification of defence, any facts which tended to show that the transaction relied on in support of the action was in contravention of a statute and therefore void for illegality. But this rule of practice was changed by St. 1852, c. 312, §§ 14,15, so far, at least, as relates to actions on the' common counts and the count on an account annexed. By these sections, it is required, not only that “ the answer shall deny, in clear and precise terms, every substantive fact intended to be denied in each count of the declaration separately, or shall.de* [523] clare the defendant’s ignorance of the fact ”—which is the general rule applicable to all civil actions; but it is also provided, that, “ in answering the common counts and the count on an account annexed, the defendant shall answer every item specifically; and if he shall deny that any item is due or payable, or that he owes the plaintiff as alleged, he shall state all the substantive grounds on which he intends to rest such denial.” This language is very explicit, and admits of only one construction. A general denial of indebtment, or a denial that a particular sum is due, is insufficient. The answer must go further, and state the specific ground of denial, so that the case may be brought at once to a precise and distinct issue of fact on each item or class "of items. If, for instance, the ground of defence is that an article was never delivered, or that it was sold contrary to law, or if any defence is intended which goes to show that the transaction was illegal or void in its inception, it must be specified in the answer, in the same manner as release, accord and satisfaction, infancy, or any other defence in its nature matter of discharge or avoidance. In the case at bar, the answer of the defendant denied only the sale and delivery of the several items of lumber specified in the account annexed. The sale and delivery therefore were the only facts which the plaintiff was bound to prove at the trial, or which the defendant could be permitted to controvert. No evidence was relevant, which was not pertinent to this precise issue. The testimony offered on the part of the defendant did not tend to disprove either of these facts. On the contrary, the grounds of defence, which the defendant thereby sought to develop, implied an admission of the sale and delivery of the lumber, and set up the new and distinct fact, that it was sold without a survey, contrary to the provisions of the statute; and that, for this reason, no action would lie to recover the price. We are therefore of opinion that the court, in rejecting the evidence offered by the defendant, and refusing to give the instructions asked for by him, acted on a sound construction of the practice act, as applied to the case on trial; and that the exceptions, for this reason, cannot be sustained. [524] Whether a similar rule will apply to actions on promissory notes, bills of exchange and other simple contracts, under the provisions of St. 1852, c. 312, §§ 14, 18, 26, we have not had occasion to consider, and do not intend to express any opinion on the question, until it shall be directly brought before us. Exceptions overruled.