Winton & Deming State Bank v. Harris

Ellison, J. — Plaintiff sued defendant on a promissory note, he being surety for two others who were not sued. Judgment was given for defendant and plaintiff appeals. The controversy here is mainly over the pleadings. Defendant’s answer pleaded a set-off exceeding plaintiff’s demand, alleged to be due him as an attorney’s fees. The reply was a general denial. There was evidence on plaintiff’s part tending to show that the services for which arose the fee were rendered by defendant and one McCartney, who was his partner at the time the services were rendered. The trial court by its instruction refused to allow this to affect defendant’s set-off, taking the view that such matter should have been pleaded in the reply. Was the court right? We think it was. Plaintiff owed for the services and owed defendant for them, but owed to defendant and another on account of the partnership. In other words [159] there was another person interested in the defendant’s claim. This was a defect of parties which if it had appeared on the face of the answer would have been the subject of demurrer — not so appearing, it should-have been taken advantage of by being set up in the replication. • In respect to this point, defendant occupies the position of a plaintiff, and plaintiff’s replication is an answer to defendant’s set-off as set up by him. In such case it seems clear that plaintiff’s claim, that the subject-matter of the set-off was owned by another in conjunction with defendant, amounts only to a defect of parties, and should of course have been set up in the replication. , In Rickey v. Ten Broek, 63 Mo., 563, which was a suit for the purchase price of certain cattle, the evidence tended to show ,that other persons were part owners of the cattle with the plaintiff and the defendants sought to have that issue submitted to the jury, but the court said: ‘ ‘Instruction number 4, which asked the court to declare that if the jury believe the cattle were owned by others in conjunction with the plaintiffs they would find for the defendant,¡was properly refused. Our statute provides that when a party fails to take advantage of a defect of parties either by demurrer or answer he shall be deemed to have waived the same.” By way of illustration of the rule of pleading we quote from Musser v. Adler, 86 Mo. 445, where it is-said: “In view of this, and the state of the pleadings, we think the case should not be reversed. The character of the defense thus interposed at the close of the trial by prayers for instructions, was to admit that the services were rendered, but to avoid a recovery on the ground that they were illegal and contrary to public policy. Such a defense. should be pleaded and an intelligent issue made thereon. Here it is very clear [160] that the question was raised incidentally, and, that too, at the close of the trial. It is not enough that evidence may appear tending to establish facts which if pleaded would defeat a recovery. , The general denial puts in issue the facts pleaded in the petition, not the liability. The facts from which the law draws the conclusion of non-liability must be pleaded in'the answer when they are not stated in the petition. This defense so far as pleading is concerned is not unlike that of champerty, gaming, usury and the like. It is an affirmative defense and* should be clearly and distinctly stated. This was not done, not even attempted in this case.” Plaintiff’s contention includes testimony tending to show that defendant had assigned the claim on which the set-off was founded to his partner; but we think the foregoing applies to this as well. When testimony has been introduced under such pleadings, it is allowable to withdraw it from the jury by an instruction. Kersey v. Garton, 77 Mo. 645; Reynolds v. Reynolds, 45 Mo. App. 622. We may remark, that we may not be misunderstood, that if defendant’s own testimony had shown that he had' assigned his claim . and thereby parted with all interest therein, he would of course fail to make out his case — he would fail to sustain his own -pleading. In this case the defendant denied plaintiff’s contention, and for plaintiff to make an issue thereon he should have pleaded the facts. The court permitted the defendant, for the purpose of showing the value of his services rendered to plaintiff, to state the value, extent and volume per year, of his law business at the time the services were rendered. This was objected to and the objection put upon the specific ground that such matter should be shown by the books, presumably defendant’s account books, as being the best evidence. In this respect the objection was not tenable and was properly overruled. We will [161] only consider the point on the objection as made. The rule is on appeal to hold the objector within the limits of the objection as made and specified below. Russell v. Glasser, 93 Mo. 353. We discover no error in the record and hence affirm the judgment. All concur.