Vanzant v. Shelton ( 1866 )


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  • IIaNdy, C. J.,

    delivered the opinion of the court.

    This action was brought by the plaintiffs in error upon a general allegation of mdubitatws asswnvpsit, with a bill of particulars accompanying the declaration, for certain sums of money paid by the plaintiffs for the defendant’s use, and for certain sums had and received. The defendant pleaded: 1, the general issue; and 2, payment of the sums of money demanded before the institution of the suit; and with the- latter plea, a bill of particulars was filed by way of set-off, containing, among other things, a charge for use and occupation of the Brandon Hotel, from 1st of September, 1854, to March 15, 1856, at $800 per year, amounting to $1,233.33. The plaintiff replied to this second plea, that at the time said set-offs accrued, the plaintiff, Mary Yanzant, was a married woman, and wife of Edward Yanzant. To this the defendant rejoined, in substance, that before the accrual of the plaintiff’s cause of action, the defendant, being the owner of the Brandon Hotel and premises, made a verbal contract to sell the same to Mrs. Yanzant upon terms which are stated, and, under that contract, that plaintiff went into possession of the premises, and, in right of the wife,, kept a hotel thereon, and during said occupancy paid at different times sums amounting to $700, in part payment of the purchase-money, but failed, and refused to comply with the terms of said agreement of purchase, and held possession of the *338premises in right of the wife, against the will of defendant, but under the verbal contract, which use and occupation he avers were worth $1,233.33. He avers that he was always ready and willing to execute the verbal agreement on his part, but that plaintiffs fraudulently refused to execute the same.

    The plaintiffs demurred to this rejoinder, upon the folio wing-grounds: 1. That it was no avoidance of the replication. 2. That it is a departure from the plea, and sets up a new defence. 3. It does not show that Mary Yanzant was liable, notwithstanding her coverture. 4. It sets up matter of evidence under the general issue.

    The demurrer was overruled, and leave given to the plaintiffs to answer over; which they failed to do.

    A second rejoinder was filed, which alleges that, after the making of said verbal contract, Mrs. Yanzant purchased goods for the use and purpose.of carrying on said hotel, from Shelton & Co., set forth in certain exhibits filed, of which firm defendant was a partner, who gave her credit with the firm by assuming to pay for goods furnished and money advanced to her, which he was induced to do by her assurance that she'would carry out said verbal contract for the purchase of said hotel; that while said account was being made, Mrs. Yanzant paid to Shelton & Co. $100 on 26th December, 1854, being the item in the plaintiff’s bill of particulars charged as of that date, and which is therein improperly stated as a deposit with the defendant; and on 27th July, 1855, she paid to the credit of said account $350, stated in a receipt of Shelton & Co. of that date, filed with the declaration ; which several sums were payments to Shelton & Co., on their account, for goods furnished, etc., for the hotel.

    To this the plaintiffs demurred on the following grounds:

    1. That it was but a new ground of defence to the declaration, and not in avoidance of the replication. 2. It showed no legal liability of Mrs. Yanzant, notwithstanding her coverture.

    This demurrer was overruled and leave given to the plaintiffs to reply over, which they failed to do, and judgment was rendered for the defendant.

    On these pleadings the case stands thus: The plaintiffs sue *339on account for money paid by them for the defendant, and for money had and received by him to their use. The defendant pleads payment, and relies as a set-off for money due by the wife for rent of the hotel. She replies, denying her liability, by reason of her coverture. The defendant then rejoins, alleging that the sum claimed in the plaintiffs’ declaration to have been paid by them, was not paid to him for the plaintiffs’ use, but was paid on the parol contract for the purchase of the hotel and premises, and, that contract being invalid, that the money was applied by him to pay his claim for use and occupation of the premises.

    This is a clear departure from the ground taken in the plea of payment. In that plea, interpreted by the aid of the accompanying bill of particulars, he alleges that he had paid the sum demanded, because theflavnúff's wife was Viable to him for the use and occupation of the hotel. But in the first rejoinder he alleges that the money claimed by her as having been paid for her use, was paid by her, and applied by him to the payment of his claim for use and occupation. In the one case he says she is indebted to him, in the other he says she has paid that indebtedness. In the former case she would not be liable to him, by reason of coverture; in the latter*the question would arise whether he is entitled to apply the moneys so paid to his claim for use and occupation. In the former case the defence would be by way of confession and avoidance of the plaintiffs’ demand; in the latter, it would be a.denial of the demand; for if the money paid be properly applicable to the demand for use and occupation, the plaintiffs were not entitled to recover it back, and the defence was proper to be made as a traverse of the plaintiffs’ action, and under the general issue.

    The second rejoinder is still more objectionable. The plea, aided by the bill of particulars, relies on a further set-off of money assumed and paid by the defendant to Shelton & Co. for the wife, and for which she was indebted to him. The replication denies this liability, by reason of her coverture. The rejoinder then alleges that the sums of money in question were not deposited with the defendant for the plaintiffs’ use, but were paid by them on the account due by them to Shelton & Co. *340Thus, instead of these sums being paid by defendant for the plaintiffs, as the plea alleges, they were paid by the plaintiffs on account of Shelton & Co., according to the rejoinder. This is clearly a shifting of the defendant’s ground of defence; and if it be true, as alleged in the rejoinder, it goes to show that the plaintiffs were not entitled to recover for the sums paid to Shelton & Co., and that defence was proper to have been made under the general issue. It was not a matter of jpayment by the defendant of a claim admitted by the plea to have once existed, but a traverse that the defendant was ever liable for the moneys paid to Shelton & Co.

    The rejoinder should, therefore, have been held bad.

    But we are of 02finion that the replication is likewise bad, because it put in issue, not the matter stated in the flea of payment, but the-inatters contained in the bill of particulars filed with the plea. This is not admissible by the rules of pleading; and whilst it is true that the bill of particulars, required to be filed with a plea of payment, is an important matter to enable the defendant to avail himself of a set-off under the plea, yet the matters stated in the bill of particulars, but not set forth by proper averments in the pifea, cannot be put in the issue as part of the pleadings by replication or demurrerbut it is incumbent on the plaintiff to confine his response to the matters set forth in the plea. 'This is required by proper rules of pleading, and it can work no prejudice to the plaintiff, nor does it preclude him of any of his legal rights in the matter. In the present case the plea of coverture neither confesses and avoids, nor traverses, the allegation of the ple&3 that the defendant had paid the sums demanded by the plaintiffs, and hence is no sufficient answer to the allegation. If the plaintiff sought to avoid the validity of the alleged payment, founded on the set-off relied on by reason of the want of liability of the wife for the matters of set-off, that question should have been presented by taking issue on the plea of payment; and on the trial of that issue, evidence might have been offered of her coverture, and thus the question might have been presented whether she was liable or not under the facts of the case.

    *341The demurrer should, therefore, hare been extended -back to the replication of corerture, and so far as the case depended on the pleadings, judgment should hare been rendered for the defendant.

    But upon the whole record, the judgment for the defendant was erroneous. There was a plea of non assvmpsit, and also a replication trarersing the plea of payment; both of which issues were undisposed of, after the denxurrer to the rejoinders was orerruled. And it was error to render judgment upon the orerruling of the demurrer, without disposing of the issues of fact presented by the pleadings.

    The judgment is rerersed, and the cause remanded for further proceedings, in accordance with the -views herein stated.

Document Info

Judges: Iiandy

Filed Date: 4/15/1866

Precedential Status: Precedential

Modified Date: 11/10/2024