Parks v. Holmes

Walker, J. The assignment of errors questions the correctness of the decision of the court below, in sustaining a demurrer to appellant’s third plea. It was to the first count, and was intended as a plea of failure of consideration. It alleged that the sole and only consideration of the promissory note declared on, was work and labor performed by Hochshied and Schmahl before the giving of the note, for the defendant, in and about certain masonry which they had contracted to do for the defendant, and that the work was performed in so unskillful and unworkmanlike a manner that the same became and was wholly useless and of no value to the defendant; and that the note was assigned and transferred by Hochshied and Schmahl, the payees, to the plaintiff, after the same became, by the terms thereof, due and payable. A plea that the whole consideration of a note has failed must show wherein it has failed, or it will be insufficient. It, like all other pleas which set up affirmative matter, to be sufficient must be certain to a common intent. It should be direct and positive in the averment of facts, and not state mere conclusions. The very object of a special plea being to apprise the plaintiff of the grounds of defense, it should state all the material facts constituting that defense clearly and distinctly, so as to inform the opposite party of what he has to meet on the trial. This degree of certainty has always been required by the practice of the courts of this State, and the decisions of this court have been uniform in requiring the plea to particularly disclose the manner in which the consideration has failed; and that a mere averment that it had failed, or that it was for property or labor which was insufficient as a consideration, is not sufficiently certain. The plea under consideration is defective in not disclosing wherein the consideration had failed. It alleges that the note was given in consideration of masonry work which “ was done in so unskillful and unworkmanlike a manner that the same became and was wholly useless and of no value to defendant.” It does not state in what the unskillfulness consisted, whether from defective materials used, unskillfulness in putting them together, or the performance of the labor at an improper time. But it leaves it to conjecture whether one or another of‘ these, or other facts, would be relied upon to establish the defense. It was urged that as the demurrer was joint to both pleas, that the court erred in sustaining it to the one and overruling it to the other. The second plea presented to the whole declaration the same defense that the third did to the first count, and was equally defective, and the demurrer should likewise have been sustained to it. But the defect in the second plea was waived by filing replications and going to trial. The appellant, by his second plea, obtained all that he could have done under his third plea. By the second plea he was permitted to introduce all matters of defense which he could have done under the third. And even if the third plea had been sufficient, having under the other plea received all the benefit he could have had by his third plea, he would have no right ■to complain. A defendant has no right to continue to present ¡.the same defense by different pleas. The whole object of pleading is answered when a particular defense is set up by one plea, and nothing beneficial can be attained by its repetition in the same record. And where two or more pleas, presenting in all respects the same defense, are interposed, all but one should be stricken from the files, as they only uselessly encumber the record. The judgment of the court below is affirmed. Judgment affirmed.