in abatement that is, all which are based upon the same facts - are evidently new matter: they cannot be proved under the general denial, but must be specially pleaded. III. Some Particular Defences of New Matter Classified and Arranged. § 575. 699. Introductory. In all the following examples in which it has been held that the defences are new matter, it must be understood that the complaints or petitions were in the proper form, containing the allegations necessary to constitute the causes of action, and no more. When the plaintiff's pleadings deviated from this usual type, and were so framed that the defences could be admitted under the general denial, this fact will be particularly mentioned. § 576.700. Payment. It is the settled rule, except perhaps in California, that when the complaint or petition is in the customary form, not averring the fact of non-payment in so distinct a manner that an issue would be raised upon it by a denial, the defence of payment is new matter, and must be pleaded as such.1 dency of another action); Thompson v. Greenwood, 28 Ind. 327; Bond v. Wagner, 28 Ind. 462. The rule stated in the text, that defences in abatement are new matter and must be pleaded, is further illustrated by the following cases: Allison v. Chicago & N. W. R. Co., 42 Iowa, 274; Plath v. Braunsdorff, 40 Wis. 107; White . Miller, 7 Hun, 427; Dawley v. Brown, 9 id. 461; Levi v. Haversteck, 51 Ind. 236; Stafford v. Nutt, 51 id. 535; Smith v. Peckham, 39 Wis. 414; NewhallHouse Stock Co v. Flint & F. M. Ry. Co., 47 id. 516; Dutcher v. Dutcher, 39 id. 651, and numerous cases cited. 1 McKyring v. Bull, 16 N. Y. 297; Morrell v. Irving Fire Ins. Co., 33 N. Y. 429, 443, per Davies J.; Texier v. Gouin, 5 Duer, 389, 391, per Oakley C. J.; Martin v. Pugh, 23 Wis. 184; Phillips v. Jarvis, 19 Wis. 204; Stevens v. Thompson, 5 Kan. 305, distinguishing Marley v. Smith, 4 Kan. 183, on the ground that in the latter case the allegations were unusual; Baker v. Kistler, 13 Ind. 63; Hubler v. Pullen, 9 Ind. 273; Bassett v. Lederer, 1 Hun, 274, an action for goods sold and delivered. The complaint stated that defendant 'had not paid the price, nor any part thereof :" the answer was a general denial. Held, that proof of payment under the issue was error. This case certainly goes further than any other, and is inconsistent with those cited in the next following note. Hall. Olney, 65 Barb. 27, an instance of payment after suit brought. Held, that defendant should have set up the defence in a supplemental answer. See also Everett v. Lockwood, 8 Hun, 356; Knapp v. Runnells, 37 Wis. 135; Hegler v. Eddy, 53 Cal. 597 (tender); Johnson v. Tyler, 1 Ind. App. 387; Hyde v. Hazel, 43 Mo. App. 668; St. Louis, Ft. S. & W. R. Co. v. Grove, 39 Kan. 731; Ellison v Rix, 85 N. C. 77; and see Lent v. N. Y. & Mass. Ry. Co., 130 N. Y. 504. [Payment: Ferguson v. Dalton (1900), 158 Mo. 323, 59 S. W. 88; State ex rel. v. Peterson (1897), 142 Mo. 526, 39 S. W 453; Farmers' Nat. Bank v. Hunter (1899) 35 Ore. 188, 57 Pac. 424; Hopper v. Hopper (1901), 61 S. C. 124, 39 S. E. 366; Marshall & Ilsley Bank v. Child (1899), 76 Minn. 173, 78 N. W. 1048; Mullen v. When, however, the complaint or petition contains negative averments of non-payment, so that a traverse of them is in fact equivalent to an allegation of payment, an issue is made by the mere denial general or specific, which admits the defence of payment to be proved under it. This is not an exception to the foregoing rule; for an issue upon the very fact of payment is actually formed by such assertions and denials. The decided cases present some differences in respect to the form of the averment in the complaint or petition, which, by being traversed, permits the defence to be interposed; but the principle upon which they were decided is the same in all. In an action to recover for work and labor, the complaint stated the agreement, the performance of services at a stipulated price, and that on a certain day named the defendant "was indebted to the plaintiff in the sum of $333, being the balance remaining due after sundry payments made by defendant to the plaintiff. The answer was a general denial. Evidence offered by the defendant to prove payments made by him on account, the New York Court of Appeals held, ought to have been admitted under this issue, distinguishing the case from McKyring v. Bull by reason of the peculiar averments in the complaint.2 Morris (1895), 43 Neb. 596, 62 N. W. 74; Cady v. South Omaha Nat. Bank (1896), 46 Neb. 756, 65 N. W. 906; Ashland Land, etc. Co. v. May (1897), 51 Neb. 474, 71 N. W. 67; Hudelson v. First Nat. Bank (1897), 51 Neb. 557, 71 N. W. 304; Morehouse . Throckmorton (1899), 72 Conn. 449, 44 Atl. 747; Culbertson Irrig, etc. Co. v. Cox (1897), 52 Neb. 684, 73 N. W. 9; Hortzell v. McClurg (1898), 54 Neb. 313, 74 N. W. 625; Barker v. Wheeler (1900), 60 Neb. 470, 83 N. W. 678; s. c. (1901), 62 Neb. 150, 87 N. W. 20; Union Stockyards Nat. Bank v. Haskell (1902), Neb., 90 N. W. 233; Richards v. Jefferson, (1898), 20 Wash. 166, 54 Pac. 1123; Meating v. Tigerton Co. (1902), 113 Wis. 379, 89 N. W. 152; Clark v. Wick (1894), 25 Ore. 446, 36 Pac. 165; Nat. Bank v. Quinton (1897), 57 Kan. 750, 48 Pac. 20. A plea of payment confesses the cause of action: Lokken v. Miller (1900), 9 N. D. 512, 84 N. W. 368. "A plea of payment in full is ordinarily good, without specifying the time, place or manner thereof: " Fall . Johnson (1896), 8 S. D. Where a complaint set 163, 65 N. W. 909. Contra, Wortham v. Sinclair (1896), 98 Ga. 173, 25 S. E. 414. A plea of payment cannot be held bad on demurrer: Buist v. Fitzsimons (1894), 44 S. C. 130, 21 S. E. 610. See the following cases for pleas of payment which were held sufficient: Hardin County v. Wells (1899), 108 Ia. 174, 78 N. W. 908; Garrison v. Murphy (1902), Neb., 89 N. W. 766. An insufficient plea of payment, treated as sufficient by the parties, will be deemed amended so as to properly raise the issue in the supreme court: Mulhall v. Mulhall (1895), 3 Okla. 252, 41 Pac. 577.] 1 [Brassell v. Silva (1897), 50 S. C. 181, 27 S. E. 622; State ex rel. v. Peterson (1897), 142 Mo. 526, 39 S. W. 453; Logan County Nat. Bank v. Barclay (1898), 104 Ky. 97, 46 S. W. 675. Contra, Columbia Nat. Bank v. Western Iron Co. (1896), 14 Wash. 162, 44 Pac. 145; Barker v. Wheeler (1901), 62 Neb. 150, 87 N. W. 20.] 2 Quinn v. Lloyd, 41 N. Y. 349, 352, per Lott J.: "The denial involved an issue out an indebtedness by the defendant, and added "that the same was still due and unpaid," the general denial was held a sufficient answer to allow proof of payment. In an action for work and labor, the complaint alleged the services to a specified amount in value, and that there was a balance due the plaintiff, "after deducting all payments made by defendant to plaintiff thereon, of $175." The general denial, it was held, entitled the defendant to prove all the payments which he had made. This special rule has been repeatedly acted upon by the courts of California. Indeed, as has been before stated, they have gone much farther, and have made it a general requisite, in actions upon promissory notes at least, that the complaint must aver the non-payment as a breach in a distinct form, or it will fail to state a cause of action; and that the general denial of such a pleading necessarily admits evidence of payment. In some of the cases the judges have gone to the length of declaring that the general denial, like the general issue of nil debet or non assumpsit, always admits the defence of payment.* 3 § 577. * 701. What may be shown under the Defence of Payment. When a defence of payment is pleaded, it is competent to show that the payment was actually made in cash, or in some upon all the facts above stated and denied, 1 other manner agreed upon by the parties: as that it was made by the delivery of chattels, which were received by the creditor in satisfaction of his demand; or by the giving and acceptance of anything that is received in the place of money, and in discharge of the debt.2 But under the answer of payment in an action upon a note, the defendant cannot prove a want of consideration for the note, or a mistake in its execution, or an error in the prior accounting and the ascertaining the balance for which it was given, or the execution of a contemporaneous writing which modifies or controls the legal effect of the note; and the same doctrine is plainly applicable to actions upon any species of written agreement.3 § 578. * 702. Arbitrament and Award. Former Recovery. The defence of an arbitrament and award covering the same matters in controversy as those stated in the complaint is new matter, and must be pleaded; and so also is the defence of a former recovery for the same cause of action, and of a former partial recovery.6 § 579. * 703. Actions for the Recovery of Chattels. In an action to recover possession of chattels, the complaint alleging property in the plaintiff, and the answer specifically denying the wrongful taking and detention of the goods, and no more, the facts relied upon by the defendant as constituting his actual defence were, that the plaintiff and one G. were partners and the real owners 1 Farmers' Bank v. Sherman, 33 N. Y. 69. Also, receipt by plaintiff of the proceeds from collaterals in his hands, Wolcott v. Ensign, 53 Ind. 70. [Edmunds v. Black (1896), 13 Wash. 490, 43 Pac. 330.] 2 Hart v. Crawford, 41 Ind. 197. [McLaughlin v. Webster (1894), 141 N. Y. 76, 35 N. E. 1081; State Bank v. Kelly (1899), 109 Ia. 544, 80 N. W. 520 (ratification of agent's act in receiving note); Thompson-Houston Elec. Co. v. Palmer (1893), 52 Minn. 174, 53 N. W. 1137 (laws of another State as to legal effect of accepting note).] 3 Lowry v. Shane, 34 Ind. 495. 4 Brazil v. Isham, 12 N. Y. 9, 17. [Evidence tending to impeach an award actually made is not admissible under a general denial: Conn. Fire Ins. Co. v. O'Fallon (1896), 49 Neb. 740, 69 N. W. 118. The defence of an agreement to arbitrate is new matter: Merchants' Ins. Co. v. Stephens (1900), Ky., 59 S. W. 511. See also Kahn v. Traders' Ins. Co. (1893), 4 Wyo. 419, 34 Pac. 1059.] 5 Hendricks v. Decker, 35 Barb. 298; Piercy v. Sabin, 10 Cal. 22; Norris v. Amos, 15 Ind. 365. See also Cave v. Crapto, 53 Cal. 135; Fanning v. Hibernia Ins. Co., 37 Ohio St. 344; Meiss v. Gill, 44 Ohio St. 253; Louisville, N. A. & C. Ry. Co. v. Cauley, 119 Ind. 142. But see Terry v. Munger, 49 Hun, 560. [McLean v. Baldwin (1902), 136 Cal. 565, 69 Pac. 259; Whitcomb v. Hardy (1897), 68 Minn. 265, 71 N. W. 263; Dixon v. Caster (1903), — Kan. —, 70 Pac. 871; McCarty v. Kinsey (1899), 154 Ind. 447, 57 N. E. 108. See the last three cases above cited for methods of pleading this defence.] 6 Morrell v. Irving F. Ins. Co., 33 N. Y. 429, 443. of the goods in question, and that G. had bailed them to the defendant, who retained them in virtue of such bailment. This defence, however, was held inadmissible under the pleadings, because, first, the unqualified ownership of the plaintiff was admitted on the record by the failure of the answer to deny the allegation of property contained in the complaint; and, secondly, the authority conferred by one owner, G., upon the defendant, to take and retain possession of the chattels, was new matter, and should have been pleaded.1 And, in a similar action, a defence that the defendant had loaned money to the plaintiff's intestate, who was the late owner of the chattels, and had received from him the possession thereof, and retained them in possession as security for such advances, is new matter, and cannot be proved unless specially pleaded; 2 and the same is true of the defence, that the plaintiff's title is fraudulent and void as against his creditors.3 § 580.704. Actions for Tort. In an action to recover damages for the conversion of chattels, a justification by the defendant as sheriff, under an attachment, judgment, execution, and levy against a third person, charging that the goods were the property of such judgment debtor, and had been fraudulently assigned and transferred by him to the plaintiff, so that the latter's title was void, cannot be proved under an answer of denials, but must be pleaded as new matter.4 There are cases which go to the extent of holding that, under the general denial, which traverses the indispensable averment of a sufficient property in the plaintiff, the defendant cannot show property in 1 Tell v. Bever, 38 N. Y. 161. A lien on the chattel or other special property therein cannot be shown under a general denial: Guille v. Wong Fook, 13 Ore. 577. 2 Gray v. Fretwell, 9 Wis. 186. [And the defence of right of possession by reason of a lien is new matter: Mellott v. Downing (1901), 39 Ore. 218, 64 Pac. 393.] 3 Frisbee v. Langworthy, 11 Wis. 375. Contra, see Young v. Glascock, 79 Mo. 574; Stern Auction, etc. Co. v. Mason, 16 Mo. App. 473; Sopris v. Truax, 1 Col. 89; Bailey v. Swain, 45 Ohio St. 657; Holmberg v. Dean, 21 Kan. 73; Merrill v. Wedgwood, 25 Neb. 283. [Coos Bay R. R. Co. v. Siglin (1894), 26 Ore. 387, 38 Pac. 192.] 4 Jacobs v. Remsen, 12 Abb. Pr. 390; Graham v. Harrower, 18 How. Pr. 144. In the latter case, T. R. Strong J. seems to concede, that, under a denial of the allegation of property in the plaintiff, the defendant may prove general property in himself, but not a justification under judicial process. Frisbee v. Langworthy, 11 Wis. 375, an action to recover possession, but governed by the same rule as to pleading a justification. Isley v. Huber, 45 Ind. 421; Boaz v. Tate, 43 Ind. 60, 71, 72; Johnson v. Cuddington, 35 Ind. 43; Langton v. Hagerty, 35 Wis. 150, 161. Contra, see Mason v. Vestal, 88 Cal. 396; Tupper v. Thompson, 26 Minn. 385. |