Foren v. Dealey

By the Court, Upton, J.: The only question presented arises upon an order striking out the answer and rendering judgment for the plaintiff. Evidently there are parts of the answer which, if they are unqualified by the other parts, amount to a defense. “If an answer puts in issue the ultimate facts resulting from the evidence, it is sufficient. (Moore v. Murdoc, 26 Cal. 524.) But it is claimed by the respondent’s counsel, and seems to have been held by the Circuit Court, that all the direct statements of the answer which would have been available, are rendered useless by qualifications and contradictions. If a defendant sets up that no consideration was given, and in a second defense sets forth the circumstances under which the note was given, the first branch of the answer will be interpreted by the second. (Kyle v. Harrington, 4 Abb. Pr. 42.) And if it appears from the circumstances that there was a consideration, the first defense, although direct and positive, will be of no avail. This is but an application of the general and familiar rules of pleading, that a pleading must not be contradictory, and that a party is bound by the admissions in his pleading. We have only to examine the answer and ascertain whether it contains any admission of a consideration or makes any statement inconsistent with the plea that the note was given without consideration. The answer contains many redundant statements in regard to the defendant’s affairs and the members of his family which could not possibly aid his defense or serve any beneficial purpose; but we do not find in this array of circumstances any statement that flatly contradicts the plea that there was no consideration-for the note. Nor do the allegations, taken as a whole, show that the note must have been founded [95] upon sufficient consideration. The circumstance that the parties met a day or two before the note was made “and accounted, reckoning all things theretofore existing in deal between them, and struck a balance,” is not entirely inconsistent with the first plea. The same may be said of all the circumstances detailed in the answer; notwithstanding all that is set out, it is not impossible that there was an ascertained balance due to the defendant, and he may have been induced by threats to give the note without any good or valuable consideration, for aught that appears in the circumstances detailed. No affidavit was filed upon which the Court would act, as was done in the case of Brewster v. Bostwick (6 Cow. R. 34). The argument of the respondent assumes that the Court can decide upon the truth of the plea, and declare an answer sham upon mere probabilities. Thus he claims that the allegations in regard to the accounting render it improbable that the account was settled, or that no money was due to the plaintiff, and that the defendant’s assertion, made at the time he signed the note, that he would not pay it, renders it improbable that he was intimidated, or that he signed the note through fear of arrest; but I think this assumption untenable. When an answer is objected to as false, and therefore sham, the Court should not proceed upon probabilities, but to justify striking out an answer on this ground it must be obviously false, or if must be shown to be false and in bad faith. “Sham answers are such as are good in form, but false in fact, and pleaded in bad faith.” (Gostorfs v. McCahill & Co., 18 Cal. 385; Piercy v. Sabin, 10 Cal. 22.) None of the numerous authorities cited by the respondent, justify a Court in striking out an answer, and rendering a judgment on the merits, upon a mere suspicion of untruth; nor in rejecting an answer as contradictory, and thus terminating the case, unless the statements alleged to be contradictory are entirely inconsistent with the truth of the defense that is well plead. It cannot safely be asserted from an inspection of this answer that it could not have been established on the trial that the note was without consideration. If the truth of the matter rested [96] on probabilities, this entitled tbe party to a trial. It was, therefore, error to render a final judgment for the plaintiff. So much irrelevant and redundant matter is contained in the answer, and intermingled with that which is material, that it encumbers the case, and there is much reason to think the Court might well have made the order striking out the answer, at the same time granting leave to amend upon terms; and if the terms were not accepted, might have rendered this judgment; but these defects do not warrant a judgment without an opportunity to defend. “Mere vagueness in pleading is to be corrected by amendment, and not visited by judgment.” (Kelly v. Barnett, 16 How. Pr. R. 135; Struver v. Ocean Insurance Company, 9 Abbott Pr. R. 23.) The judgment should be reversed and a new trial granted.