J. C. Kirchdorfer Equipment Co. v. Arts Corp.

Opinion of the Court by

Judge Ratliff-

— -Affirm-

ing.

Appellee, who was the plaintiff below, brought this action in the Jefferson circuit court seeking to recover of the appellant, defendant below, the sum of $1,764.98, subject to a credit of $57.50, for certain wares and merchandise sold and delivered to the defendant and prayed judgment against defendant in the sum of $1,707.48- with interest, cost, etc.

Defendant filed its answer, the first paragraph of which consists of a categorical denial of the allegations of the petition and particularly denied that it was indebted to plaintiff in the sum of $1,707.48 or “any other sum whatsoever.”

In paragraph two of the answer defendant stated that on or about the 14th day of July, 1939, plaintiff agreed to sell and deliver to the defendant two “Black-hawk” motor tractors at a list price of $998.50 each, freight to be paid by the plaintiff, less, however, a twenty-five per cent special discount to defendant, making the net price therefor $748.88 each, and that subsequently two such tractors were delivered to the defendant and that the net charge therefor to the defendant should have been $1,497.76, less the $57.50 credit allowed defendant by the plaintiff, leaving a net charge of only $1,440.26. Defendant subsequently filed its amended answer containing allegations tending to show that it was entitled to an additional credit or deduction of $57.50 from the price of the tractors, thus leaving a net charge of $1,382.76.

.Plaintiff filed no reply or otherwise controverted the affirmative allegations of defendant’s .answer in respect of the discounts and credits it alleged it was entitled to, thereby admitting the truth of such allegations. Plaintiff then entered motion for judgment on the face of the pleadings for the sum of $1,382.76 which was in accordance with the affirmative pleas contained in paragraph two of defendant’s original answer and the amended answer, which motion the court sustained and rendered judgment against the defendant for the sum last mentioned. Defendant has appealed.

No reason is assigned in defendant’s brief for a reversal of the judgment, except it is stated that since defendant categorically denied each and every allegation contained in the petition, an issue of fact was made which should have been submitted to a jury. It is true that the first paragraph of defendant’s answer standing alone made an issue of fact, but it must not be overlooked that paragraph two of the answer and amended answer is contradictory of defendant’s denial, since it is shown by these pleadings that defendant is indebted to plaintiff in the sum of $1,382.76, the amount of the judgment. Under the rule that a pleading will be construed more strongly against the pleader, it follows that since defendant’s affirmative pleas which amount to an admission on their face that defendant is indebted to the plaintiff in the sum of $1,382.76, such admission is controlling as against the denial that defendant is indebted to the plaintiff in any sum.

It follows, therefore, that the court did not err in rendering judgment in favor of plaintiff on the face of defendant’s own pleading.

Judgment affirmed.