Herr v. Kennedy

BAKER, J. (After Stating the Facts as Above.)— The denial in the answer that “there was 45,155 pounds of baled hay sold and delivered to the defendant” is an admission that a lesser number of pounds of hay were sold and delivered to the defendant. The denial “that the said hay was originally worth the sum of $677.32” is an admission that the hay delivered was worth any sum less than $677.32. Each one of these denials is an example of a negative pregnant. As a general rule no issue» can be joined on a negative pregnant because the affirmative implication to which it is open destroys the effect of the denial. The answer was therefore insufficient, and a judgment on the pleading would have been proper [145] were it not that the answer contains new matter in the way of an alleged counterclaim which must first be disposed of or tried. We think, however, that it was error to overrule the plaintiff’s demurrer to the alleged counterclaim. It is alleged in setting up the counterclaim “that plaintiff on the 10th day of December, 1918, and prior thereto was indebted to the defendant in the sum of $595.58 upon an account stated.” This allegation is nothing more than an averment of a legal conclusion. There is no statement of how the alleged indebtedness arose and no statement of any fact or facts from which it can be determined whether any indebtedness existed. The necessity for a statement of the facts essential to the right claimed is not obviated by averments of legal conclusion. A conclusion of law tenders no issue, and a counterclaim which depends upon such allegations is insufficient and demurrable. The verdict is in bad form, and should have been corrected before being received. It is confused and unintelligible. Moreover, the jury had no right or authority to assess or adjudge the payment of costs. The statute provides who shall recover costs. Rev. Stats. 1913, par. 628. The judgment itself is inconsistent and incapable of enforcement. It finds both for the plaintiff and the defendant. It first finds for the defendant in the sum of $595.58, and then finds that the defendant “pay to the plaintiff, F. S. Herr, the difference between $677.32 and $595.58.” How can such a judgment be enforced! It is clear that there has been a mistrial of the case. The judgment will be reversed and a new trial ordered. The defendant will be permitted to amend his pleadings if he is so minded. ROSS, C. J., and McALISTER, J., concur.