Manson v. Sutterer

If the issues of payment and ownership had been distinct and separate each from the other, I would agree with Justice GARDNER that plaintiff was entitled to have the jury instructed that, if they believed the evidence, he was the owner of the note on which the suit was brought. The instructions set out in Justice McCLELLAN'S opinion, and which were refused to plaintiff, in legal effect hypothesized every fact set up in plea 11 which denied ownership. They were each in legal effect an instruction to find for plaintiff on the issue of ownership. It is a well-recognized practice in this state to give such charges as to a particular count, plea, replication, etc., when there is no dispute or conflict in the evidence, although there are other issues as to which such charges cannot be given.

The issues were, however, confessed by the fault of the plaintiff, and hence the charges on that account might tend to confuse or mislead the jury, and, for that reason, were properly refused, as stated by Justice McCLELLAN. The confusion of issues was thus brought about by plaintiff.

The defendant had filed more than a dozen pleas, each raising separate and distinct issues; one of which was payment, and another ownership. To these pleas plaintiff filed the general and several special replications, without specifying as to which of the pleas any special replication was addressed. Construing these special replications against the pleader at fault, as we must do, they confessed and avoided the plea denying ownership.

No doubt the replications were intended as replies to the plea of payment, and not to that of ownership, because appropriate to the one but not to the other; but we are controlled by the record proper in this respect, and it shows the issues as we have above stated them. We are not allowed to indulge presumptions or intendments against the record, even to support the rulings of the trial court on pleadings, much less can we do so if thereby we reverse the rulings and judgment of the lower court.

The plaintiff having filed special replications to the plea denying his ownership, he thereby, so far as the issue was raised by the special replications, conclusively confessed the plea which denied his ownership. His general replication, of course, denied the plea and put the ownership in issue, and hence, for all purposes or all issues, he had not confessed, and under this issue ownership of the note could be proven or disproven; but not so as to the issues raised by the special replications; as to these issues the plaintiff confessed the plea — this he had to do before he could avoid the plea. The fact that in the special replications he also asserted ownership does not change the rule; if it be a special replication, it must confess and avoid, or set up an estoppel. The plaintiff himself having treated it as a special replication in attempting to avoid the plea, he must under the rules of pleading be held to have confessed the plea denying ownership. Having thus confessed that he was not the owner, as to this issue he had no right to an instruction that he was the owner. This is well settled by our statutes and decisions.

"The plaintiff may file more than one replication without unnecessary repetition. The general replication is, 'The plaintiff joins issue on such plea.' A special replication is a brief statement, in plain language, of the facts relied on as an answer to the plea." Code, § 5338.

The question is fully discussed and expressly decided in the case of Lee v. De Bardeleben Co., 102 Ala. 628, 630, 15 So. 270, where it is said:

"If plaintiff had joined issue upon the defendant's plea of contributory negligence, the burden then would have devolved upon the defendant to make good this plea. Bromley v. Birmingham Min. R. R. Co., 95 Ala. 397 [11 So. 341]. Instead of joining issue the plaintiff replied specially. A replication must either traverse or confess and avoid the matter pleaded, or present matter of estoppel. Winter v. Mobile Savings Bank,54 Ala. 172. A general replication is a joinder in issue on the plea. 'A special replication is a brief statement in plain language of the facts relied on as an answer to the plea.' Code, § 2688. The defendant is not required to offer evidence in support of facts averred in the plea, which are confessed in the replication to the plea. In the case of Dockery v. Day, 7 Porter, 518, the plaintiff declared upon a promissory note to which the defendant pleaded infancy. The plaintiff replied a subsequent promise. This court held that the introduction of the note by the plaintiff did not authorize a recovery; that in addition, he must prove a subsequent promise, as averred in his replication, and that the defendant was not required to prove the facts admitted in the replication. The principle is recognized in the case of Coster v. Brack, 19 Ala. 210."

We may have inconsistent issues in our pleadings, but it must be done by separate pleas, replications, etc., and each issue is referred to its own relative pleading, and is not aided or defeated by other pleadings.

"While it is a general rule of law that a party will not be allowed to deny what he has affirmed of record in his plea, and that parties are bound by their pleadings, yet this rule does not extend to the limit of allowing one of several pleas in the same cause of action to prove or disprove another inconsistent plea. Our statute allows such inconsistent pleas, and to invoke the rule would defeat the object and purpose of the statute, and remit the parties to their rights at common law. Pope v. Welsh's Adm'r, 18 Ala. 631." Ferdon v. Dickens, 161 Ala. 181,195, 196, 49 So. 888, 893.

The same is of course true as to replications and subsequent pleadings, because the Code allows them to be so pleaded.

As before said, of course, a plaintiff may reply generally and specially, and as to the issue raised by the general issue the defendant must prove the plea; but as to the other issues raised by the special replication, they are of necessity confessed, and the defendant need not prove them.

If the plaintiff had by his charges limited the finding of the jury to the issue raised by his general replication to the plea, they should have been given; but the charges were as applicable to the issues raised by the special replications as to the one raised by the general issue. Having confessed that he was not the owner, so far as these issues were concerned, of course, he was not entitled to have the court instruct contrary to his confession.

It therefore results that there was no reversible error in refusing these instructions, and that the judgment must be affirmed.