Dole v. Burleigh

BaeNes, J. The first point made by the appellant is that the court below erred in refusing to allow a copy of the alleged lost note or the contents of the note to be given in evidence. That the evidence of the loss was sufficiently established to make this evidence competent, I have no doubt. But I am entirely' unable to discover that the plaintiff was prejudiced by its rejection. To properly understand this question we must advert to the pleadings. •The complaint, it will be observed, alleges the making and delivery of the note by the defendant to the plaintiff for a valuable consideration. It also alleges the loss of the note by the plaintiff prior to the commencement of this suit, and at the time of its loss it was not indorsed by the plaintiff. It is well here to note the fact, that every material allegation of that complaint, not denied, is admitted for all purposes connected with this suit. The logical deduction then is this: if the loss of the note is admitted, not being denied, then the evidence offered of the loss of the note and its contents was merely cumulative, and it will not seriously be insisted that the rejection of cumulative evidence, of a fact admitted upon the record, would be error. . This suggests the inquiry, does the answer controvert any material allegation of the complaint, except the want of con [233] sideration for the note? If not, the plaintiff was entitled to recover without the introduction of any testimony on his part. The want of consideration being a matter of defense. The respondent claims that the first paragraph of his answer in the words following, is a general denial of every material allegation of the plaintiff’s complaint: ‘‘ The above named defendant, Walter A. Burleigh, for answer to the com-plaint of the above named plaintiff herein, says that, he denies each and every material allegation thereof in manner and form, as therein set forth.” This is not a denial of the allegation in the complaint. The words, “ in manner and form as therein set forth,” qualify the preceding language, so that the denial only refers to the manner and form in which the plaintiff has stated his cause of action, and not to the substance of the allegations in the plaintiff’s complaint. This paragraph of the answer is clearly frivolous, and would have been struck out on motion and judgment awarded to the plaintiff upon the pleadings, except that other portions of the answer and the reply present other issues. An answer which denies that the defendant made the promise in manner and form as alleged in plaintiff’s complaint, is but the assertion of a conclusion of law from certain facts. (35 Barber, 298, Tiffany’s N. Y. Practice, 373.) “A general denial must be certain and positive.” Tiffany then gives the following form: “ The defendant denies each and every allegation of the plaintiff’s complaint.” (Tiffany’s N. Y. Practice, 369.) I am aware there is a conflict of authorities as to whether using the word material in the denial would make the answer frivolous. There are authorities that hold that a denial in the following form is good: “ The defendant denies each and every material allegation of plaintiff’s complaint.” I am unable to find one decision that will uphold or sustain the form of denial used by the pleader in this case. (12 Wisconsin, 1): A denial in the language of the complaint is not sufficient. It must be of the substance of the allegations of the complaint. A denial of the indebtedness without denying the alleged [234] fact out of .which the indebtedness arose, is merely a denial of a legal conclusion. (16 Howard’s Term Reports, Davidson v. Powel, 467; 18 Wis., 400;. 11 Wis., 126.) A denial in an answer in the words of the complaint is not good. It is a negative pregnant with an admission that the alleged facts may have transpired on some other day or under different circumstances. (22 Wis., 412; 21 Wis., 149; 8 Howard’s Term Reports, 273.) Under the Code a party may set up as many defenses as he chooses, but he cannot, by making repugnant allegations, compel the plaintiff, in order to avoid a denial in one part of the answer, prove a fact admitted in another. The object of the Code was to compel the defendant to admit every part of the plaintiff’s complaint which he could not conscientiously deny. Therefore, any fact sustaining the plaintiff’s case admitted in one part of the answer is to be taken as true for all purposes in the case, and the plaintiff is not bound to prove it. In this case the answer is a general denial; second, a justification, and it is held not well pleaded. (Howard v. Page, 14 Wis., 49.) Viewed in the light of these authorities, there was no error in rejecting the evidence of the plaintiff of the copy of the note declared on, or its contents. The second question presented for consideration is this: The second paragraph of defendant’s answer alleges, that the note described in plaintiff’s complaint was wholly without consideration, thus a material issue is presented for trial. Upon that issue the court below did not find. This is apparent from an inspection of the record. That this was a material issue there is no question. That the court below omitted to find upon this issue was a fatal error will not be denied if that question is properly here for review. The appellant in support of his position relies upon the decision in the case of Holt v. Van Eps, decided at this term of court. That was an action for wrongfully detaining personal property alleged to be the property of the plaintiff. The detention and ownership of the property were denied by the defendant. The jury found that the property was [235] wrongfully withheld, or that the plaintiff was entitled to the possession of the property, but did not find that the plaintiff was the owner of it. The omission to find was discoverable only from an inspection of the record. The court were unanimously of the opinion that the objection was well taken, and a new trial was ordered. In like manner the error in this case appears from an inspection of the record, and I do not see how it could be presented in any other way. It was suggested upon the argument by appellant’s counsel that the attention, of the court below should have been called to the necessity of finding upon this issue. But how could this have been done? The respondent could not have-known that the court below had neglected to find upon this issue, until judgment was pronounced, and I know of no authority that would justify the court below, after pronouncing judgment, to re-open the case and make am additional finding. That would in legal effect be no less/chan setting aside the judgment and rendering a different/óne. It should be observed that there is a material difference between an omission to find upon a material issue and an erroneous finding. The error in the case of omission is Ascertained from an inspection of the pleadings and-the finding — in the other, from an examination of the pleadings, tjie finding of the court, the evidence taken upon the trial, ^ánd the rulings and decisions of the court during the progress of the trial. In the latter case, therefore, the evidence and decisions of the court must be preserved and brought before the appellate court for review, by a case made or bill of exceptions. I, therefore, come to this conclusion, that such errors as are apparent from an inspection of the record must be determined by that inspection; that such as occur upon the trial, and such as are not apparent upon the record, can only be brought before this court by a case agreed upon, or bill of exceptions. The decision of the court in the case of Holt v. Van Eps must control our decision in this case. In the case of Thurber v. Jones, 14 Wis., 16, the Court say: “ We are of the opinion that the complaint in this case is clearly insufficient to support the judgment. As there is no [236] bill of exceptions of course we cannot look into what purports to be the testimony taken on the assessment of damages. We can only examine and pass upon the errors apparent upon the record. This we have done and find that the complaint does not state facts sufficient to support the judgment.” In the case of Davidson v. Davidson, 10 Wis., 86, the Court say: “ We do not find in the return made by the clerk of the circuit court any bill of exceptions orease embracing the testimony used upon the trial. And we, therefore, can only consider such errors.as are apparent upon the record.” The Court say in 5 Wis., 132: “ There being no bill of exceptions in this case we can only notice-gjich errors as appear upon the record.” The counsel for the plaintiff in error contends that the proof in the court below was defective or insufficient''!:!) warrant the finding of the court. If the objections had be&n properly taken and incorporated in a bill of exceptions, we nljght have considered them. But now it is otherwise. \ The judgment of the court below is reversed and a newCtrial ordered, and the case remanded for further proceedings according to law. All the Judges concurring.