Boston Relief & Submarine Co. v. Burnett , 83 Mass. 410 ( 1861 )

Hoar, J.

This is an action of contract to recover assessments upon shares in the capital stock of the plaintiff company, which had been subscribed for by the defendant. The declaration sets forth a written contract by the defendant to take certain shares of the stock, a copy of the contract being annexed thereto, and avers a promise by the defendant to pay ten dollars for each share according to the terms of the contract, and that assessments were duly laid upon the shares according to the contract. The answer admits the signature of the defendant to the contract, and that he thereby undertook to take the shares, but denies a promise to pay ten dollars for each share; and further “ denies each and every allegation in the plaintiffs’ writ and declaration contained except as aforesaid, and leaves the plaintiff to prove the same.” The presiding judge at the trial ruled that, under these pleadings, the plaintiffs were bound to .prove that the assessments were duly laid. The -plaintiffs except to this ruling on the ground that, the declaration having alleged “ with substantial precision and certainty,” that the assessments were duly laid, and this allegation of a substantive fact not being denied by the answer “ in clear and precise terms,” it should have been deemed to be admitted. St. 1852, c. 312, § 26.

We are of opinion that the ruling was right, and that the exception cannot be sustained. The denial is of each and every allegation in the declaration except those which had been expressly admitted; and there seems in this case nothing to which this denial could apply except the allegations in relation to the assessments. But upon more general grounds we should come to the same conclusion. Where “ each and every allegation ” is denied, the denial is none the less clear and precise in its application to each than it would be if the allegations were repeated in detail, and a formal denial made to each of them. It is not a mere negative of the result of the plaintiffs’ averments, taken collectively, involving simply a denial of their united legal effect, and so constituting a “ general issue.” The difference between what the practice act requires in an answer, and the “ general issue ” which it abolished, has been fully stated in several recent cases. Granger v. Ilsley, 2 Gray, 521. Middlesex Company v Osgood, 4 Gray, 447. Mulry v. Mohawk Valley Ins. Co. 5 Gray, 541. Haskins v. Hamilton Ins. Co. 5 Gray, 432. Bradford v. Tinkham, 6 Gray, 494.

E. F. Hodges, for the plaintiffs. F. W. Palfrey, (G. S. Hillard with him,) for the defendant.

We can imagine that so concise and comprehensive a form of denial, if commonly adopted, might lead to abuses ; and are not surprised to find a difference of opinion as to its admissibility existing among judges at nisi prius. If any attorney should adopt it, where he was not instructed by his client that there were sufficient grounds to contest all the averments to which it would apply, the practice would be highly censurable and inconsistent with professional duty. It would also be in the power of the court, where there could be any doubt as to the facts thus put in issue, to require, upon the plaintiffs’ motion, a more exact and detailed answer, or to postpone the trial on the ground of surprise. But, in the absence of any rule or order of the court upon the subject, we cannot regard this form of denial as so destitute of precision and certainty as to be equivalent to an admission of any substantive fact alleged in the declaration. Exceptions overruled.