Heebner v. Shepard

Wallin, C. J. Action on notes given for a thrashing machine. The answer alleges that the machine was sold on a warranty, and that it did not work as warranted, and by reason thereof the defendant was damaged in a large sum, for which judgment was demanded. The plaintiff never at any time served either a demurrer or a reply to the answer, and after the time for serving a reply had expired the defendant moved the court “to dismiss plaintiff’s complaint, and give judgment for his counterclaim.” The motion was made upon the ground that no reply had ever been served to the defendant’s answer, and that the time for [57] reply had expired. Pursuant to said motion of the defendant, an order of the trial court was made, adjudging plaintiff in default for want of a reply to the counterclaim, as stated in the answer, and further adjudging that the defendant could submit proof of the facts alleged in the answer. Plaintiff appeals to this court from said order. Plaintiff’s sole contention in this court is that the order should be reversed for the reason that the matter pleaded in the answer is purely defensive matter, and does not constitute a counterclaim, and therefore no reply was required. In our judgment, the contention of the plaintiff is untenable. The answer stated, in substance, that the notes described in the complaint were given by defendant to the plaintiff for a thrashing machine, which machine was sold by plaintiff to defendant upon a warranty, and that the machine did not work as warranted, and by reason of which fact defendant had been damaged in a large sum, for which defendant demanded a judgment against the plaintiff. The action is upon contract, and the defendant, by his answer, admits the execution of the contract, i. e. the notes in suit, and thereby confesses the cause of action stated in the complaint. The defendant then proceeds to set out by answer another contract between the plaintiff and the defendant, and alleges a brief act thereof, and damages resulting from such breach, and demands judgment against the plaintiff for damages. In brief, the case falls clearly within the terms of the second subdivision of section 4915, Comp. Laws. The action is one arising on contract, and the counterclaim set out in the answer is one also arising on contract, and one existing at the commencement of the action, in favor of the defendant, and against the plaintiff. The answer contains no defense whatever to the causes of action stated in the complaint. On the contrary, the answer, by admitting the execution and delivery of the notes, and by failing to allege any facts tending to defeat the notes, thereby confesses the plaintiff’s cause of action. It follows that the cause of action against the plaintiff as stated in the answer was a counterclaim, pure and simple, and [58] nothing else. To this counterclaim the plaintiff should have replied, if he desired to controvert the same. No reply was served, and therefore the defendant was entitled to make the motion indicated by section 4919, Comp. Laws. The order appealed from was made upon such motion. (63 N. W. Rep. 892.) The order of the District Court must be affirmed. All the judges concurring. Note — The defendant may move for judgment on counterclaim for want of reply. Power v. Bowdle, 3 N. D. 107. That the facts pleaded are not the proper subject of counterclaim, can only be taken advantage of by demurrer, and cannot be raised on the trial by motion. First Nat. Bank v. Laughlin, 4 N. D. 401. Where an answer states a good defense imperfectly, the defect should be met by motion to make the pleading more definite and certain, and not by motion for judgment on the answer as frivolous. Yerkes v. Crum, 2 N. D. 72. A motion to strike out a verified general denial as sham and for judgment cannot be entertained. Cupples Wooden Ware Co. v. Jansen, 4 Dak. 149.