Bausman v. Woodman

Berry, J. 1. “If a reply to any new matter set up in the answer is insufficient, the defendant may demur thereto, stating the ground thereof.” Laws 1881, c. 44, § 2. A reply is insufficient when, if true, it is in law, for any reason, no answer to the new matter set up in the defendant’s answer. And when it is thus insufficient, it is, under the statute cited, demurrable, although its insufficiency may be such that it could be properly stricken out more unceremoniously on motion. 2. A demurrer reaches back to the first fault in pleading, so that upon demurrer to a reply the defendant may attack the complaint. Lockwood v. Bigelow, 11 Minn. 70, (113;) Moak’s Van Santv, Pl. 654-656. 3. The reply in this case was clearly insufficient. It was responsive to nothing in the amended answer, (the only answer in the case: Hanscom v. Herrick, 21 Minn. 9,) but was rather an attempt to remedy the shortcomings of the complaint. We think the complaint states a cause of action. If it sufficiently alleges partnership, this will hardly be disputed. If it does not sufficiently allege partnership, it certainly does allege a contract to combine the property and labor of each party in a common business enterprise to be prosecuted for the benefit of both, and that out of the prosecution of this enterprise either mutual accounts or accounts on one side, with reference to which a material discovery is asked, or both, have arisen, which either party' has a right to have “fairly and fully adjusted and settled according to the provisions of the contract.” Garner v. Reis, 25 Minn. 475; Greenleaf v. Egan, 30 Minn. 316; 1 Story, Eq. Jur. §§ 457, 459. Though the complaint appears to contain much matter which will be altogether superfluous and unavailable without considerable amendment, we think that it sufficiently shows a right in plaintiff to maintain this action for an accounting, adjustment, and settlement of what may, with sufficient accuracy for our present purpose, be called the business of 1883. This is all that we deem it necessary [515] to say with reference to the complaint as it now is, as we presume it will he found advisable to considerably amend it. For the insufficiency of the reply the demurrer should, however, have been sustained, and the order overruling it is accordingly reversed.