Sanford v. Gates , 18 Mont. 398 ( 1896 )

De Witt, J.

The record does not disclose upon which ground the demurrer was sustained. Appellants argue that it must be presumed that it was sustained upon the formal ground, to-wit, the second one set out in the demurrer, and cite Kleinschmidt v. Binzel, 14 Mont. 31. But this is not important, for the second ground of the demurrer to the answer is not one allowed by the Code. (Code Civil Procedure, 1887, §§ 92-94.)

We therefore proceed to the question of whether the answer sets up facts sufficient to constitute a defense. The argument of the respondent has taken a wider range than we think the pleadings justify. Indeed, we are of opinion that the position of the appellants is a very simple one, and is wholly correct. Respondent’s counsel argues with his accustomed zeal that the matter set up in the answer cannot be a counterclaim to an action of replevin. But we think that such matter is a defense. It is called a ‘ ‘defense, ’ ’ and set up as such in the answer. The complaint alleges ownership and right of possession of personal property. If the answer sets up facts which deny the ownership and right of possession, the defense is good. We are of opinion that it does set up such facts. In our view, a plain statement of the defense is simply this : The plaintiff relied upon a written contract to establish his right of possession to the property. The defendants allege, very much in detail, that the contract was obtained from them by fraud and deceit sufficient to avoid its obligation. Then they set up in their answer that the real contract between plaintiff and defendants was wholly different from that pleaded in the complaint; the contract in the complaint being for the -payment of §649.06 in order to give the defendants title to the property, whereas the real contract between plaintiff and defendants was, in fact, that defendants should pay §449.06, which payment was to give them full title to the property, and which payment they pleaded had been fully made. If these facts are true, — and, on demurrer, they are taken to be true,— the defendants have "fully completed the actual contract between the company and plaintiff; and, having fully performed the actual contract, the defendant company is entitled to the property, and the plaintiff is not.

The original contractor with the plaintiff was Gates, Townsend & Co. The company has assigned its rights to the other defendant, Florence K. Gates. We know of no reason why the assignee, Florence K. Gates, may not set up the fraud in the original contract, and rely upon the real contract for the rights which it appears w-.re assigned to her.

The judgment is reversed, and the case remanded, with instructions to overrule the demurrer.

Reversed.

HuNt, J., concurs. Pemberton, C. J., absent..