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which tend to disprove some one of these allegations may be given in evidence under the denial; any fact which does not thus directly tend to disprove some one or more of these allegations cannot be given in evidence under the denial. It follows, that if such fact is in itself a defence, or, in combination with others, aids in establishing a defence, this defence must be based upon the assumption, that, so far as it is concerned, all the material allegations made by the plaintiff are either admitted or proven to be true. The facts which constitute or aid in constituting such a defence are "new matter." In this respect the new matter of the codes is analogous to the pleas by way of confession and avoidance of the common law, since it does, in truth, confess and avoid. The two definitions may now be given, and their contrast will be plain. A plea by way of confession and avoidance admitted that the cause of action alleged did once exist, and averred subsequent facts which operated to discharge or satisfy it. The new matter of the codes admits that all the material allegations of the complaint or petition are true, and consists of facts not alleged therein which destroy the right of action, and defeat a recovery. To sum up these conclusions, the classification of and distinction between defences at the common law depended upon the intrinsic, essential nature of the causes of action and of the defences. The analogous classification and distinction between defences admissible under a denial, and those which are new matter, in the new procedure, depend primarily upon the structure of the complaint or petition, and the material averments of fact which it contains. All facts which directly tend to disprove any one or more of these averments may be offered under the general denial: all facts which do not thus directly tend to disprove some one or more of these averments, but tend to establish a defence independently of them, cannot be offered under the denial; they are new matter, and must be specially pleaded.' I shall now apply these general principles to some particular instances.

§ 550. * 674. Particular Defences Admissible under the General Denial. In Actions for Compensation for Services. I shall in this subdivision classify and discuss only those cases in which defences have been held admissible: those which have been pronounced inadmissible, for the reason that they fell within the denomina1 [Keens v. Robertson (1896), 46 Neb. 837, 65 N. W. 897.]

tion of "new matter," will be given in the next succeeding section. In an action by an attorney and counsellor to recover compensation for professional services, the complaint stating the retainer, the services and their value, and the answer being a general denial, the plaintiff proved the services, and gave evi-dence showing their reasonable value. It was held that the

defendant might, under his denial, show that the services were rendered upon a special agreement to the effect that the plaintiff would look to the recovery of costs from the adverse party as his sole mode of compensation, and would make no personal claim against the defendant.2 And in a similar action under the same answer the defendant may prove the plaintiff's negligence and want of skill, by which the value of the services was diminished or destroyed.3 In general, in actions to recover compensation for work and labor upon a quantum meruit the defendants may, under the general denial, prove that the work was negligently or unskilfully done, and thus contest its value; and may prove that the plaintiff had assigned and transferred the demand before suit. brought, for this controverts the defendant's indebtedness to him.5

§ 551. * 675. In Actions for Negligent Injuries. In actions for injuries to person or property alleged to have resulted from the

1 For a summary of recent decisions, see the additions to the last note under S * 682.

2 Schermerhorn v. Van Allen, 18 Barb. 29, per Parker J.: "The evidence was improperly excluded. Under a general allegation of indebtedness, the plaintiff had proved certain services rendered and their value. It was surely competent for the defendant, under a denial of such indebtedness, to prove that he never incurred or owed the debt. He had a right to prove that the services were rendered as a gratuity, or that the plaintiff himself had fixed a less price for their value than he claimed to recover. The services being proved, the defendant might show that they were rendered, not for him, but on the credit of some other person, or that the plaintiff himself undertook to run the risk of the litigation. It was not an attempt to show an extinguishment of the indebtedness by payment, release, or otherwise; but it was an offer to show that such indebtedness never existed.

The defendant was at liberty to prove any circumstances tending to show that he was never indebted at all, or that he owed less than was claimed."

3 Bridges v. Paige, 13 Cal. 640, 641. 4 Raymond v. Richardson, 4 E. D. Smith, 171. But under a mere denial of the value, the defendant cannot show that the services were not rendered. Van Dyke v. Maguire, 57 N. Y. 429.

5 Wetmore v. San Francisco, 44 Cal. 294, 299. And in an action for goods sold and delivered, the defendant may show that the plaintiff acted as agent for another person, whose name was disclosed, and who was the actual vendor. Merritt v. Briggs, 57 N. Y. 651.

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defendant's negligence, he may prove under a general denial that the wrong was caused by the negligence of third persons not agents of the defendant, and for whom he was not responsible; or may prove contributory negligence of the plaintiff.2 In accordance with the principle of these decisions, the defence of non superior is always admissible under a general denial of complaints which allege the commission of injuries by means of defendant's servants, employees, or agents.3 $552. * 676. Assignment, Want of Consideration, etc. In an action upon a promissory note or other security, the defendant may under the general denial show an assignment of the thing in action to a third person before the suit was commenced, since this directly controverts the averment of title in the plaintiff ; *

1 Schular v. Hudson River R. Co., 38 Barb. 653; Schaus v. Manhattan Gasl. Co., 14 Abb. Pr. N. s. 371; Jackson v. Feather Riv. & G. W. Co., 14 Cal. 18; Adams Exp. Co. v. Darnell, 31 Ind. 20. In this case, proof that the goods were stolen was admitted in an action against a common carrier. [Roemer v. Striker (1894), 142 N. Y. 134, 36 N. E. 808.]

2 Schaus v. Manhattan Gasl. Co., 14 Abb. Pr. N. s. 371; New Haven & N. Co. v. Quintard, 6 Abb. Pr. N. §. 128; Indianapolis, etc. R. Co. v. Rutherford, 29 Ind. 82; Jeffersonville, M. & I. R. Co. v. Dunlap, 29 Ind. 426; Hathaway v. Toledo, etc. Ry. Co., 46 Ind. 25, 27. This decision is placed upon the ground that in Indiana the plaintiff must allege and prove the absence of negligence on his part. See also McDonell v. Buffum, 31 How. Pr. 154; Evansville & C. R. Co. v. Hiatt, 17 Ind. 102; Jonesboro' & F. Turnp. Co. v. Baldwin, 57 Ind. 86; Jones v. Sheboygan, etc. R. Co., 42 Wis. 306; McQuade ". Chicago & N. W. Ry. Co., 68 Wis. 616. Contra, Watkins v. So. Pac. Ry. Co., 38 Fed. Rep. 711; Kentucky Cent. R. Co. v. Thomas, 79 Ky. 164; Stone v. Hunt, 94 Mo. 475; Donovan v. Hannibal & St. J. Ry. Co., 89 Mo. 147; Hudson v. Wabash W. Ry. Co., 101 Mo. 13; Keitel v. St. Louis Cable & W. Ry. Co., 28 Mo. App. 657 ; St. Clair v. Mo. Pac. Ry. Co., 29 Mo. App. 76; South Omaha . Cunningham, 31 Neb. 316; Grant v. Baker, 12 Ore. 329. [Indiana Natural Gas Co. v. O'Brien (1903), — Ind. 66 N. E. 742. It was

held in Kennedy v. Railway Co. (1901), 59 S. C. 535, 38 S. E. 169, that under a general denial defendant may show that the injury was caused solely by plaintiff's negligence, since this goes to controvert the allegations of defendant's negligence contained in the complaint. Otherwise in case of contributory negligence, since that admits plaintiff's allegations of negli gence and avoids the effect of the same. Quoting §* 671 of the text.]

3 [The defence that the injury was caused by a fellow servant is admissible under a general denial: Wilson v. Railway Co. (1897), 51 S. C. 79, 28 S. E. 91; Kaminski v. Tudor Iron Works (1902), 167 Mo. 462, 67 S. W. 221. But see note 2, p. 817. And under this issue the defendant may show that it exercised due care: Hunter v. Grande Ronde Lumber Co. (1901), 39 Ore 448, 65 Pac. 598.]

4 Andrews v. Bond, 16 Barb. 633. And see Wetmore v. San Francisco, 44 Cal. 294, 299. The exact contrary is held in Brett v. First Univ. Soc., 63 Barb. 610, 618, per Leonard J. The opinion in this case is, however, manifestly incorrect. Under the denial of "execution" in an action on a note or other written contract, the defendant may prove that his signature was obtained by fraud: Corby v. Weddle, 57 Mo. 452, 459; or that the instrument was not delivered Fisher v. Hamilton, 48 Ind. 239. But see Dunning v. Rumbaugh, 36 Iowa, 566, 568. In an action upon an account stated for services, the defendant cannot, under the general denial, attack any of the

and where the note is non-negotiable, a want of consideration may be shown.1 The general denial to a complaint in the ordinary form, for goods alleged to have been sold and delivered by the plaintiff, admits the defence that a third person who actually made the sale was himself the owner of the goods, and was not acting in the transaction as agent for the plaintiff; for this proof contradicts the allegation of a sale by the plaintiff; 2 and that the person who actually bought the goods in the name of the defendant was not the latter's agent, but that his prior authority had been revoked, and the plaintiff had been notified thereof; for this proof contradicts the allegation of a sale to the defendant.3

§ 553. 677. In Actions for Conversion. In an action for the conversion of chattels, the complaint of course averring property in the plaintiff, the general denial permits the defendant to show that the property is not in the plaintiff; as, for example, by proving that a third person is owner of the goods either by an absolute or qualified title. This latter proposition is, however, denied by some of the cases, which hold that the defence of property in a third person, or in the defendant, must be specially

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items in the account: Warner v. Myrick, 16 Minn. 91. The defence of alteration can be shown under the general denial in an action upon a written contract: Boomer v. Koon, 6 Hun, 645; National Bk. of Paris v. Nickell, 34 Mo. App. 295; Walton Plow Co. v. Campbell (Neb. 1892), 52 N. W. Rep. 883.

[The defence of no assignment can also be set up: Brown v. Curtis (1900), 128 Cal. 193, 60 Pac. 773.]

1 Evans v. Williams, 60 Barb. 346; Bondurant v. Bladen, 19 Ind. 160; Butler v. Edgerton, 15 Ind. 15. But not when the consideration is presumed, as in a sealed instrument or negotiable paper: Dubois v. Hermance, 56 N. Y. 673, 674; Eldridge v. Mather, 2 N. Y. 157; Weaver v. Barden, 49 N. Y. 286.

[But an illegal consideration for a promissory note cannot be shown under this issue: Dillon r. Darst (1896), 48 Neb. 803, 67 N. W. 783.]

2 Hawkins v. Borland, 14 Cal. 413; and see Ferguson v. Ramsey, 41 Ind. 511, 513.

3 Hier v. Grant, 47 N. Y. 278; and see

Day v. Wamsley, 33 Ind. 145, in which the defence was admitted that the goods were sold to defendant's wife, who had left him without cause, against his consent, and without his knowledge.

4 Robinson v. Frost, 14 Barb. 536.

[Kerwood v. Ayers (1898), 59 Kan. 343, 53 Pac. 134; Hopkins v. Dipert, (1901), 11 Okla. 630, 69 Pac. 883. So in an action for money had and received, it may be shown under a general denial that the claim was for money lost by plaintiff at the game of poker: Frank ». Pennie (1897), 117 Cal. 254, 49 Pac. 208]

Davis v. Hoppock, 6 Duer, 254. He may show title in himself or in a third person, Sparks v. Heritage, 45 Ind. 66; Kennedy v. Shaw, 38 Ind. 474; Farmer v. Calvert, 44 Ind. 209, 212; Thompson v. Sweetser, 43 Ind. 312; Davis v. Warfield, 38 Ind. 461. See also Jones v. Rahilly, 16 Minn. 320, 325; Schoenrock v. Farley, 49 N. Y. Super. Ct. 302; Johnson v. Oswald, 38 Minn. 550 (the plaintiff claiming through a sale by the defendant, the latter may, under a denial, show fraud to avoid the sale, and a rescission of it).

pleaded.1 Under a general denial in the same action, or a specific denial of the conversion, any facts may be proved in defence which go to show that there was no conversion; 2 as, for example, that the goods were lost without fault of the defendant,3 or were taken under an execution against the plaintiff.4

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$554. 678. In Actions to recover Possession of Goods. When the action is brought to recover possession of goods, the complaint alleging title or right of possession in the plaintiff, the defendant may, under the general denial, introduce evidence to show that the plaintiff is not the owner nor entitled to possession of the chattels, but cannot show that the plaintiff's title is fraudulent and void as against his creditors.6 Nor can the de

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1 Dyson v. Ream, 9 Iowa, 51; Patterson v. Clark, 20 Iowa, 429. The doctrine of these cases is clearly opposed to the true theory of the general denial.

2 [Nichols & Shepard Co. v. Minnesota Thresher Co. (1897), 70 Minn. 528, 73 N. W. 415.]

3 Willard v. Giles, 24 Wis. 319, 324. 4 McGrew v. Armstrong, 5 Kan. 284; or that the goods were taken with the plaintiff's consent, Wallace v. Robb, 37 Iowa, 192, 195; and see Phoenix Mut. L. Ins. Co. v. Walrath, 53 Wis. 669; and the defendant in such action may prove any facts in reduction of damages; as, for instance, that the maker was insolvent in an action for the conversion of a note made by a third person, and owned by the plaintiff, Booth v. Powers, 56 N. Y. 22, 27, 31, 33; Quin v. Lloyd, 41 N. Y. 349.

5 Caldwell v. Bruggerman, 4 Minn. 270; Woodworth v. Knowlton, 22 Cal. 164. In this case, defendant proved that the goods were the property of a third person. See also Sparks v. Heritage, 45 Ind. 66; Kennedy v. Shaw, 38 Ind. 474; Farmer v. Calvert, 44 Ind. 209, 212; Thompson v. Sweetser, 43 Ind. 312; Siedenboch v. Riley, 111 N. Y. 560; Griffin v. L. I. R Co., 101 N. Y. 348; Lane v. Sparks, 75 Ind. 278; Pulliam v. Burlingame, 81 Mo. 111; Oester v. Sitlington (Mo. 1893), 21 N. W. Rep. 820; Deford v. Hutchinson, 45 Kan. 318, 332; Gandy v. Pool, 14 Neb. 98; Aultman v. Stichler, 21 Neb. 72; Towne v. Sparks, 23 Neb. 142; Merrill v. Wedgwood, 25 Neb. 283; Staley v. Housel (Neb. 1892), 52 N. W. Rep. 888;

Chamberlin v. Winn, 1 Wash. 501. Under a general denial of plaintiff's title, the defendant may show that the chattel mortgage, upon which the plaintiff relies to establish his title, is void for usury: Adamson v. Wiggins, 45 Minn. 448.

[Webster . Long (1901), 63 Kan. 876, 66 Pac. 1032; Street v. Morgan (1902), 64 Kan. 85, 67 Pac. 448; Payne v. McCormick Co. (1901), 11 Okla. 318, 66 Pac. 287; Gila Valley, etc. Ry. Co. v. Gila County (1903), Ariz., 71 Pac. 913; Cumbey v. Lovett (1899), 76 Minn. 227, 79 N. W. 99; Pitts Agricultural Works v. Young (1895), 6 S. D. 557, 62 N. W. 432; Plano Mfg. Co. v. Daley (1897), 6 N. D. 330, 70 N. W. 277; Iowa Sav. Bank v. Frink (1902), Neb., 92 N. W. 916; Jenkins v. Mitchell (1894), 40 Neb. 664, 59 N. W. 90.]

6 Frisbee v. Langworthy, 11 Wis. 375. Contra, see Young . Glascock, 79 Mo. 574; Stern Auction, etc. Co. v. Mason, 16 Mo. App. 473; Sopris v. Truax, 1 Col. 89.

[Seeleman v. Hoagland (1893), 19 Col. 231, 34 Pac. 995. Contra, Nat. Bank v. Barkalow (1894), 53 Kan. 68, 35 Pac. 796; Jones . McQueen (1896), 13 Utah, 178, 45 Pac. 202; Munns v. Loveland (1897), 15 Utah, 250, 49 Pac. 743; Gallick v. Bordeaux (1899), 22 Mont. 470, 56 Pac. 961. Usury may be shown under the general denial: Davis v. Culver (1899), 58 Neb. 265, 78 N. W. 504. Waiver of conditions of sale may be shown: Oester v. Sitlington (1893), 115 Mo. 247, 21 S. W. 820.]

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