Philbert & Johanning Manufacturing Co. v. Dawson

Bland, P. J. The plaintiff furnished the defendants, Richard T. and William R. Dawson — contractors for the erection and construction of a building for defendant Eitman — the mill work called for by the specification for the building, and brought suit to recover an alleged balance due on account of said mill work, in which it also sought to enforce a mechanics’ lien against .the building and lot on which it is situated. On the trial the plaintiff recovered judgment, from which defendants appealed. statement. The contention here is based on the condition of the pleadings and the ruling of the trial court thereon. The petition averred a request by defendants, Richard T. and William R. Dawson, to the plaintiff ^ furnish the mill work' for the building, which request the plaintiff avers it complied with by furnishing said material, and that its reasonable value was $863.30. The answer of the Dawsons set up as a defense, a special written contract between plaintiff and them [127] selves, whereby they say plaintiff agreed to furnish all of said mill work for $559.60, a part of which they aver they had paid, and that they had tendered the balance, which the plaintiff refused to receive. This tender defendants kept good, by paying the alleged balance into court for the use and benefit of plaintiff. The reply was a denial of the written contract alleged in the answer, and stated that the pretended written contract on which defendants relied was evidenced by a letter in the possession of defendants, written by one of plaintiff’s employees without the knowledge or consent of plaintiff, in which said employee had by mistake and clerical error, stated that plaintiffs would furnish said mill work for $559.60, and that defendants well knew said statement was a mistake and that no such contract had in fact been made. It -was further stated in the reply that the plaintiff made a verbal contract with defendants Dawson, whereby it agreed to furnish said mill work for $863.30, and that additional mill work of the value of $8.30 had been furnished the Dawsons by it, at their instance and request. The reply also contained a specific denial of the averment in the answer, that defendants, Dawsons, had made the tender averred. Defendants filed the following motion to strike out the reply: “Come now the above named defendants, Richard T. Dawson and William R. Dawson, partners as R. T. Dawson & Co., and move the court to strike from the files herein the reply of plaintiff heretofore, to wit, the 20th day of October, 1897, filed herein, for the reason that said reply contains new matter inconsistent with the allegations of the petition filed by plaintiff herein.” This motion the court overruled, to which ruling the defendants objected and excepted at the time, and then and there filed their special bill of exceptions to said ruling. [128] Pleading. The only assignment of error relied on here for a reversal of the judgment, is that the court erred m overruling defendants motion to strike out the reply. The motion struck at the reply as a whole, but at no specific part of it, and must be governed by the rules applicable to general demurrers. Paddock v. Somes, 102 Mo. 226. If, therefore, there is any averment or statement in the reply which put at issue any of the new matter set forth in the answer as a defense to plaintiff’s cause of action as stated in the petition, the motion was correctly overruled. Eads v. Grains, 58 Mo. App. loc. cit 594; Marie v. Garrison, 83 N. Y. 14. As we have seen, the reply did put m issue the averment of tender, and also put in issue the existence of the written contract averred by defendants and relied on by them as a defense to the action. The question argued by the briefs, is that the reply was a departure from the petition, and should for that reason have been stricken out. By the generality of their motion defendants are cut off from raising that question, and its discussion is unnecessary, since the judgment of the court must be sustained, for the reason herein set forth, i. e., that the reply put at issue material averments of new matter pleaded by the answer, which the court could not properly strike out. Judgment affirmed. All concur.