Brown v. Wakefield , 67 Mass. 450 ( 1854 )

Merrick, J.

The question presented in the bill of exceptions is of considerable practical importance. It involves a consideration and construction of some of the provisions of the recent statute relative to the mode of procedure in civil actions. St. 1852, c. 312.

The declaration is in the words of one of the model forms accompanying or added to the statute. It alleges that the defendant made a note, of which a copy, with the indorsements upon it, is annexed; and that he owes the plaintiff the balance due upon it. None of the allegations contained in the declara tion are denied by the defendant in his answer; but he sets up, in his defence, the statute of limitations, as a legal bar to the maintenance of the action. This he may well do, for it is expressly provided, that the omission of or failure to make any such denial shall not deprive a party of this or certain other grounds of defence. St. 1852, c. 312, § 18.

To avoid the effect of the statute of limitations thus set up by the defendant, the plaintiff relies upon certain payments in part satisfaction and discharge of the note, which he insists were made by the defendant within six years next previous to the day on which the action was commenced. He produced upon the trial no testimony or extrinsic evidence of any such payments ; but he contends, that it was unnecessary for him to do so, because the fact that they had been made must, as a legal consequence from the pleadings in the case, be deemed to have been admitted by the defendant. This conclusion depends upon the assumption, that an averment of indebtedness for the balance due upon a note, which, with the indorsements upon it, is annexed to the declaration, is a substantial allegation, that payments have been made by the defendant at the time and in the sums expressed in those indorsements. If this conclusion is correct, the plaintiff has undoubtedly a right to avail himself of it for all legitimate purposes.

The statute provides, that any substantive fact alleged with substantial precision and certainty by either party, and not denied in clear and precise terms by the other, shall be deemed to be admitted. § 26. By this phraseology, the legal admission to be deduced from the answer of a party, and for which he is to be held responsible, is carefully expressed and restricted. It is limited, in the first place, to those facts which in relation to the issue to be tried are “ substantive; ” and in the next, to those substantive facts only which are " alleged with substantial precision and certainty.” These exact limits can be enlarged by no true or just interpretation of the language of the statute. In another and previous part of the same section, which contains these provisions, courts and judicial officers are admonished to give such a construction to all the allegations and denials of parties as will, as far as possible, discourage vagueness and loose generalities. Acting under such an admonition, there can be no doubt that it is the duty of the courts of law to restrain and confine the admission, which a party, by his failure or omission to deny the allegations of his adversary, shall be held to have made, to those averments only which are set forth in terms clear, full, unambiguous, and with legal precision. Such failure or omission is no concession at all in relation to facts not thus distinctly asserted and affirmed.

Upon this construction of the provisions of the statute, there is no difficulty in determining the question presented in the bill of exceptions. The alleged payments relied upon by the plaintiff, in avoidance of the bar set up by the defendant, are undoubtedly “ substantive facts; ” for the decision of the issue made by the parties, and the disposition of the whole cause, depend upon the proof concerning them. But they are not alleged with “precision and certainty.” Indeed, they can hardly be considered as being alleged at all. The plaintiff states the making of the note by the defendant, and his indebtedness for the balance due upon it, with sufficient clearness and accuracy. But the payments indicated by the indorsements on the note constitute no part of his claim or of the cause of action upon which he declares; and he does not set them forth as the ground upon which he would maintain it. They are concessions in diminution of his claim, admissions of his own against it; rather than allegations in its support, which need to be answered or repelled. They cannot therefore "be deemed to have been admitted by the failure of the defendant to deny, in his answer to the declaration, that he made them. Exceptions overruled.