Dean v. Howard

Dickinson, J. The order overruling the demurrer to the fourth paragraph of the answer should be affirmed, for the reason 'that a demurrer will not lie to a part of what is alleged as constituting a defense or counterclaim. Admitting that the defendant sought in the answer to plead a breach of warranty as a counterclaim, the whole of the facts alleged and bearing upon that subject are not embraced in the paragraph demurred to. The second, at least, if not the third and fifth, paragraphs, contain allegations bearing upon that subject, and the whole pleading does not justify the conclusion that the pleader intended to rely upon what is alleged in paragraph 4 alone as constituting a defense or counterclaim; hence a demurrer to that paragraph merely does not test the sufficiency of the answer, even as to the subject to which that paragraph relates. While the several paragraphs are all numbered consecutively, it is apparent that this numbering was intended only to mark the paragraphs, and not to indicate separate or independent defenses. (Opinion published 51 N. W. Rep. 1102.) The answer, certainly, is not in commendable form, but its defects are not reached by this demurrer. As to whether the entire answer shows a breach of the warranty by the plaintiffs we do not determine. Order affirmed.