Gregg v. Renfrews

Breese, J. The petition in this case contains all the essential averments required by the statute, and is good in form and substance.- The instructions given on behalf of the plaintiffs, taken as a ..whole, or- as a series of instructions, are not objectionable. They state sufficiently the law upon the several points made by them. The doctrine, that the defendant’s answer, when made under oath, if responsive to the allegations in the bill, must be taken to be true, cannot be questioned. But we do not regard the. defendant’s answer in this light. The petition alleges that the whole amount for materials, machinery and labor, specified in the exhibits filed, is due to the petitioners, and unpaid. That part of the answer which the defendants claim to be responsive is as follows: “ Defendants, further answering, state, that the said defendant, Gregg, has a just claim, as they are advised and believe, as a set-off against any claim the said petitioners may prove upon the trial of this cause, for materials returned to the petitioners, for money paid to them, and for and on account of money expended by said Gregg in repairing and fitting up said boilers, so as to make them fit for use, amounting to the sum of $3,052.72, as per account marked A. B., hereto attached and made part of this answer, will appear.” Here, it will be perceived, the defendant, Gregg, does not claim his bill of particulars, A. B., as payment, but as a set-off to the plaintiff’s claim, so far as it 'goes. He nowhere states, in response to the bill, that he has paid the plaintiff’s demand. To claim the benefit of the answer as evidence for the defendant, it must answer fully the charge as made. The charge is, that the account is unpaid. The answer is, that he has a set-off against the plaintiffs, contained in, his exhibit A. B., filed with the answer, and which he makes part of the answer. In that exhibit, it appears that the payments of money were made to third persons, but it is not alleged they were made at the plaintiffs’ request; and so with' regard to the draft on Ewing, it is not alleged it was on account of this work and materials, or that it was ever received by the plaintiffs, or paid by Ewing. The answer, then, is not responsive to the allegation in the bill, that the account of the plaintiffs is due and unpaid. We discover no error in the record, and therefore affirm the judgment, the evidence fully sustaining the verdict. Judgment affirmed.