they may exist in reality; thus, there may have been a contract for the sale of land, or of goods of a greater value than £10, and nothing given to bind the bargain, or a contract which was not to be performed within a year; in these cases, as the plaintiff has not evidence sufficient to show that there was such a contract, unless he produces a writing satisfying the statute of frauds, he is prevented from getting through his case, and the plea, therefore, of non assumpsit, or any other denying the contract, will be sufficient to let in this defence. Buttermere v. Hayes, 5 M. & W. 460; Eastwood v. Kenyon, 11 Ad. & E. 441; Tricker v. Thomlinson, 1 M. & G. 772; Reade v. Lamb, 6 Ex. 130; [Gibson v. Holland, L. R. 1 C. P. 1; Noble v. Ward, L. R. 1 Ex. 117; L. R. 2 Ex. 135; Vanderberg v. Spooner, L. R. 1 Ex. 316; Wilkinson v. Evans, L. R. 1 C. P. 407; Newell v. Radford, L. R. 3 C. P. 52.] See Leroux v. Brown, [12 C. B. 801. But see 1 Chitty Pl. 506, note (u).] Upon this principle, any objection that the writing necessary to evidence the contract declared on is not stamped, or is insufficiently stamped (Mason v. Bradley, 11 M. & W. 590), that a transfer of a ship was not in accordance with the merchant shipping acts (see Benyon v. Creswell, 12 Q. B. 899), may be taken under the general issue or other plea denying the contract, for in such cases the plaintiff's case is stopped in limine, and he is unable to prove the contract at all. Calvert v. Baker, 4 M. & W. 417; Morgan v. Ruddock, 4 Dowl. 311. See Young v. Geiger, 6 C. B. 541. Breach. Damages.] — The breach of the contract is not denied under non assumpsit. Pleading Rules, T. T. 1853, r. 6. In Smith v. Parsons, 8 C. & P. 199, which was an action for the breach of a warranty of ownership of a horse, Tindal C. J. held that under this plea the defendant could not show that the horse was sound. In such case there should be a denial of the breach in the terms in which it is alleged, and the plea should not be applied to any special damage laid as resulting from such breach. Porter v. Izott, 1 M. & W. 381; Warre v. Calvert, 7 Ad. & E. 143; see distinction between denial of a contract and excuse for breach, Lara v. General Apothecaries' Co. 26 L. J. Ex. 225. A plea to damages only is bad. Reindel v. Schell, 4 C. B. N. S. 97. Common counts]—The plea of never was indebted operates as a denial of those matters of fact from which the liability of the defendant arises (r. 6); for example, in actions for goods bargained and sold, or sold and delivered, the plea will operate as a denial of the bargain and sale, or sale and delivery in point of fact; in the like action for money had and received, it will operate as a denial both of the receipt of money and the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff. Goods sold.]-Thus, to a count for goods sold, it denies that there was such a sale and delivery as would create a legal debt, as that the goods were sold on a credit which had not expired at the commencement of the suit (Broomfield v. Smith, 1 M. & W. 574); because that negatives the existence of a present debt, which is the meaning of the words " money payable" at the commencement of the common count (Place v. Potts, 8 Ex. 705); that defendant, an undisclosed foreign principal, by the course of dealing, never incurred any liability (Smyth v. Anderson, 7 C. B. 21, 42); that the goods do not fulfil a condition under which they were bought, such as good quality (Dicken v. Neale, 1 M. & W. 556); that they were useless (Dawson v. Collis, 10 C. B. 523; that a machine was manufactured by the plaintiff for the defendant under a condition that if it did not work nothing should be paid for it, and that it could not be made to work, and was useless to the defendant (Groundsell v. Lamb, 1 M. & W. 352); that it was a conditional sale (Lamond v. Davall, 9 Q. B. 1030); non-delivery of all the goods contracted for. Skeate v. Beale, 11 Ad. & E. 985. If the goods have been kept and appropriated by the defendant, a new implied contract to pay arises, on which the plaintiff may recover, as on a quantum meruit. Cousins v. Paddon, 2 Cr., M. & R. 547; Fitt v. Cassanet, 5 Scott N. R. 902. The adultery of the wife, in an action against a husband for goods supplied to her, may be shown under this plea as negativing his implied authority to her to contract in his name. Symes v. Goodfellow, 2 Bing. N. C. 532. But where there has been a sale in point of fact, the defendant cannot show that the plaintiff had no title to the goods at the time of the sale. Walker v. Mellor, 11 Q. B. 478. Work and Materials.] — The principles regulating the effect of the general issue to an indebitatus count for goods sold (ante, 281) equally apply to an indebitatus count for the price or value of work and materials. It may be shown under the general issue, that the work was done unskilfully (Hill v. Allen, 2 M. & W. 283; Bracey v. Carter, 12 Ad. & E. 373; Mondel v. Steel, 8 M. & W. 858; Cox v. Leech, 1 C. B. N. S. 617; Long v. Orsi, 18 C. B. 610); but the plaintiff could still recover under a new implied contract for the value of any work, &c. that the defendant adopted (see ante, 281); or that the remuneration was not to be in money (Collingbourne v. Mantell, 5 M. & W. 289); that the work was not to be paid for until the certificate of a surveyor had been obtained, which had not been done (Milner v. Field, 5 Ex. 829); or that no remuneration should be claimed except for disbursements or money out of pocket (see Jones v. Reed, 5 Dowl. 216; Jones v. Nanny, 1 M. & W. 333); or that the work was done by an unqualified person in plaintiff's name. Parker v. Riley, 3 M. & W. 230. So the defendant may show that he supplied the plaintiff's men with beer to reduce the rate of wages for the work (Granger v. Raybould, 9 C. & P. 229); or that he did the work himself for the plaintiff (Turner v. Diaper, 2 M. & G. 241); or supplied materials for it. Newton v. Foster, 12 M. & W. 772. To an indebitatus count for wages or salary, any defence which establishes that before the money became due the plaintiff was properly discharged from his service, may be shown under this plea (Turner v. Robinson, 6 C. & P. 15; Ridgway v. Hungerford Market Co. 3 Ad. & E. 171); unless, however, the dismissal actually took place, the question of misconduct cannot be gone into under the general issue. Cooper v. Whitehouse, 6 C. & P. 545. So the defendant may show that the plaintiff cohabited with him as his mistress, as that tends to negative a contract of service (Bradshaw v. Haywood, 1 C. & M. 591); or that the defendants, being a corporation, did not contract under seal, or with the formalities required by the act of incorporation. Cope v. Thames Haven Ry. Co. 3 Ex. 841; Frend v. Dennett, 4 C. B. N. S. 576. Money had and received.] — In an action for money had and received, the plea of never was indebted will operate as a denial both of the receipt of money and the existence of those facts which make such receipt by the defendant a receipt to the use of the plaintiff (R. G. T. T. 1853, r. 6), such as that the money was received not entirely for the plaintiff's use, but that defendant might reimburse himself a debt out of it (Solly v. Neish, 2 Cr., M. & R. 355; Owen v. Challis, 6 C. B. 115); or that it was received for the use of a third person (Clarke v. Dignam, 3 M. & W. 478); or that defendant had a lien on it (Williams v. Vines, 6 Q. B. 355); or any facts which show that the contract made was not one to pay on request. Brownrigg v. Rae, 5 Ex. 489. Account stated.]— Never was indebted, to a count upon an account stated, denies that the parties came to an account, and that the defendant was indebted to the plaintiff thereon (Jacobs v. Fisher, 1 C. B. 178); the defendant may therefore prove, under this plea, that he was not in reality indebted because there are errors in the account (Thomas v. Hawkes, 8 M. & W. 140; Wilson v. Wilson, 14 C. B. 616); or that the items were such that he was not primarily, but only collaterally liable (Gould v. Coombs, 1 C. B. 543); but not that a subsequent account was in his favor. Fidgett v. Penny, 1 Cr., M. & R. 108. To any of the common counts defendant may show that the plaintiff and defendant were partners (Payne v. Hales, 5 M. & W. 598; Brown v. Tapscott, 6 M. & W. 123; Worrall v. Grayson, 1 M. & W. 166); it is a defence when one firm is suing another, that either of the parties is a member of both firms. Post, “Partners; " Chitty on Contracts. See post, "Account stated." As to the effect of non-joinder and misjoinder of plaintiffs, see ante, Pleas, "Abatement." Payment.] — Payment shall not in any case be allowed to be given in evidence in reduction of damages or debt, but shall be pleaded in bar. R. G. T. T. 1853, r. 14. See post, "Payment." As to where, from goods being sold for ready money and paid for at the time, or where, from the state of dealings between the parties, no debt arises, and therefore a plea of payment is unnecessary, see Bussey v. Barnett, 9 M. & W. 312; Littlechild v. Banks, 7 Q. B. 739; 18 Q. B. 722, per Lord Campbell; note to Coldham v. Showler, 3 C. B. 320; Smith v. Winter, 12 C. B. 487; Baker v. Heard, 5 Ex. 959; [1 Chitty Pl. 504.] Pleas of payment and set-off, and all other pleadings capable of being construed distributively, shall be taken distributively; and if issue is taken thereon, and so much thereof as shall be sufficient answer to part of the causes of action proved shall be found true by the jury, a verdict shall pass for the defendant in respect of so much of the causes of action as shall be answered, and for the plaintiff in respect of so much of the causes of action as shall not be so answered. C. L. P. Act, 1852, s. 75. Where to a general count a general traverse is pleaded, the issue may be treated distributively; and if the plaintiff succeeds in part only, and recovers less than his demand, the defendant has a right to have the verdict entered for him as to the residue, and to have his costs, if any, allowed of his successful defence to any distinct part of the plaintiff's claim. Treherne v. Gardner, 8 El. & Bl. 161; Paterson v. Harris, [1 B. & S. 336.] See, further, Day's Common Law Procedure Act, 70, and Gray on Costs. S. 74 of the C. L. P. Act, 1852, enacts that "Whereas certain causes of action may be considered to partake of the character both of breaches of contracts and of wrongs, and doubts may arise as to the forms of pleas in such actions, and it is expedient to preclude such doubts; any plea which shall be good in substance shall not be objectionable on the ground of its treating the declaration either as framed for a breach of contract or for a wrong." By r. 8, H. T. 1853, the defendant shall not be at liberty to waive his plea, or enter a relictâ verificatione after demurrer, without leave, unless by consent. If any pleading be so framed as to prejudice, embarrass, or delay the fair trial of the action, the opposite party may apply to the court or a judge to strike out or amend such pleading, and the court or any judge shall make such order respecting the same, and also respecting the costs of the application, as such court or judge shall see fit. C. L. P. Act, 1852, s. 52. The power of the courts or judges to set aside pleadings tending to embarrass is limited to such as are at once embarrassing and irregular, informal, or tricky, and contrary to the rules and practice of pleading, and does not extend to such as merely put the opposite party to difficult, expensive, and needless proof. Welland Ry. Co. v. Blake, 6 H. & N. 410. See, further, Day's Common Law Procedure Act, 48, 49. It seems that if an act of parliament gives a party a general form of declaration, and enacts that it shall only be necessary to prove certain matters in support of it, the plea of the general issue requires the plaintiff to prove all such matters. Edinburgh Ry. Co. v. Hibblewhite, 6 M. & W. 707; Brighton Ry. Co. v. Wilson, 6 Bing. N. C. 135; post, Pleas, "Public Company." See Welland Ry. Co. v. Blake, 6 H. & N. 410, in which case the company was incorporated by a colonial act. 1. Plea of Nunquam Indebitatus to the whole Declaration. The defendant, by his attorney, (f) [or "in person"] says, (g) that he (h) never was indebted as alleged. (i) 2. The like to Part of a Declaration. (k) As to the [first] count (1) [or "as to the causes of action so far as they relate to the sum of £ 66 money claimed"], says that he never was indebted. 3. The Similiter. Ante, 20, Form 2. 4. Non Assumpsit. That he did not promise as alleged. (m) parcel of the [For this class of cases the Massachusetts Practice Act prescribes the following forms of answer: (f) Ante, 19, note (o). (g) If the form is not restricted in the commencement, it will be taken as pleaded to the whole declaration. (h) See the form where one defendant only pleads, others being sued, ante, 20. (i) This is the form given by C. L. P. Act, 1852, sch. B, and is applicable to declarations like those numbered 1 to 14 in that schedule. (k) See other forms, ante, 20, variations and see notes (ƒ) and (g), supra. (1) A plaintiff shall be at liberty to trav erse the whole of any plea or subsequent pleading of the defendant by a general de nial, or admitting some part or parts thereof to deny all the rest, or to deny any one or more allegations. C. L. P. Act, 1852, s. 77. (m) This is the form given by C. L. P. Act, 1852, sch. B, 37, and is applicable to declaration on simple contracts, not on bills or notes, numbered 19 to 22. In that schedule "did not warrant," " did not agree," or any other appropriate denial would be unob jectionable. Ib. - Money had and received.- And the defendant comes and upon his personal knowledge denies that he received the money mentioned in the plaintiff's bill of particulars, or any part thereof. [Or, if the case be so,] admits that he received the money mentioned in the plaintiff's declaration, but denies that he received it to the plaintiff's use. And the defendant comes and says, upon his personal knowledge, that he received the money mentioned in the plaintiff's bill of particulars, but upon his information and belief he denies that he received the same or any part thereof to the plaintiff's use. And the defendant comes and upon his personal knowledge denies that he has received to the plaintiff's use the money mentioned in the plaintiff's bill of particulars, except the sum of fifty dollars. Statute of Limitations. And the defendant comes and answers that the cause of action mentioned in the plaintiff's writ did not accrue within six years before the suing out of the plaintiff's writ. Payment. And the defendant comes and answers that he has paid the plaintiff the sum of dollars, which was the full amount of the account stated in the plaintiff's bill of particulars. If there are several items, add: And he annexes hereto a bill of particulars of said payment. Account annexed. Goods sold and delivered.—And the defendant comes and answers as follows, viz. As to the first ten items of the plaintiff's bill of particulars, upon his personal knowledge he denies that the plaintiff sold and delivered the same to the defendant. As to the eleventh item, upon his personal knowledge he denies that the price was to be more than ten dollars. Work. As to the twelfth item, he is ignorant personally, and by information and belief, whether the plaintiff performed the day's labor there charged or not, and also of the price thereof, if any, so that he can neither admit nor deny the plaintiff's allegation, but leaves the plaintiff to prove the same.] Non est Factum. In actions on specialties and covenants, the plea of non est factum shall operate as a denial of the execution of the deed in point of fact only, and all other defences shall be specially pleaded, including matters which make the deed absolutely void, as well as those which make it voidable. R. 10. And by r. 11, "all matters in confession and avoidance shall be pleaded specially as above directed in actions on simple contracts." This plea, properly speaking, does not amount to the general issue; it merely denies the execution and effect of the deed as set out. If that be proved, the plaintiff must recover, as the plaintiff's other allegations and the breach are admitted. This alleged effect of the deed, as well as its execution, are put in issue by this plea. North v. Wakefield, 13 Q. B. 536; Fazakerly v. M'Knight, [6 El. & Bl. 795;] 26 L. J. Q. B. 30. The necessity for profert and oyer is now abolished, but by C. L. P. Act, 1852, s. 56, a party pleading in answer to any pleading in which any document is mentioned or referred to, shall be at liberty to set out the whole or such part thereof as may be material, and the matter so set out shall be deemed and taken to be part of the pleading in which it is set out. |