Flournoy v. Osgood — 99 A.D. 270

Majority

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Mathews W. Flournoy, Respondent, v. John C. Osgood, Appellant.

Headnote

Irrelevant matter in an answer in an action on contract to recover the value of merchandise — each defense must he complete in itself.

The complaint in an action alleged the execution by the parties of a written contract, by which the defendant agreed to purchase from the plaintiff property mentioned in an exhibit attached to the complaint for the sum of §230,000, and also to pay the plaintiff the fair market value of property which was termed by the parties “merchandise,” and which was included in the property mentioned in said exhibit. The complaint also alleged that the articles mentioned in Schedule 2 attached to the complaint were delivered to the defendant pursuant to said contract; that they were of the value of §2,776.37, and that they constituted “merchandise” within the meaning of the contract; that the defendant refused to pay for such property, and that there was due and owing from the defendant the sum of §2,776.37.

The 4th paragraph of the answer interposed by the defendant set out, as part of a defense of payment, the defendant’s construction of the agreement upon which the action was based, which was in substance a denial of the allegation of the complaint that in and by the agreement pleaded in the complaint it was further agreed that certain property therein termed merchandise was excluded from the property that was to be sold for the §230,000 which had been paid by the defendant, and that the articles set forth in Schedule 2 annexed to the complaint were a part of the merchandise for which the defendant was to pay the sum of §2,776.37 in addition to the other consideration to be paid.

Held, that such 4th paragraph of the answer should not be stricken out as irrelevant and improper;

That it was proper for the defendant, as part of his defense of payment, to deny in his answer the allegation of the complaint that the defendant had failed to pay for the articles composing the item of 82,776.37.

The defendant alleged, for a second defense, that subsequent to the making of the agreement between the plaintiff and the defendant, and prior to the commencement of the action, a dispute arose between the plaintiff and the defendant as to whether the defendant was liable to the plaintiff in the sum of §2,776.37; the value of those articles set forth in Schedule 2 annexed to the complaint, and that an agreement was made by which that amount in dispute was deposited in a national bank.

Held, that the defendant was entitled, in connection with such defense, to deny the allegation of the complaint that the articles in question were merchandise and that he was liable to pay therefor or that he had refused to pay.

Each defense in an answer must be complete in itself, and cannot be assisted by a general denial elsewhere in the answer.

Appeal by the defendant, John C. Osgood, from an order of the Supreme Court, made at the New York Special Term and entered

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in the office of the clerk of the county of New York on the 26th day of August, 1904, striking out certain allegations of the defendant’s amended answer as irrelevant and improper.

The complaint in the action alleged that the plaintiff and the defendant entered into a written contract by which the defendant agreed to purchase from the plaintiff property mentioned in Exhibit A, attached to the complaint, for the sum of $230,000; that in addition to this sum the defendant agreed to pay the plaintiff the fair market value of certain property termed by the parties “ merchandise,” and included in the property mentioned in said exhibit; that the articles mentioned in Schedule 2 attached to the •complaint were delivered to the defendant pursuant to said contract and were of the value of $2,776.37; that they constituted “ merchandise ” within the meaning of the contract; that the defendant refused to pay for them and that there was due and owing from the defendant $2,776.37.

J. Frederick Eagle, for the appellant.

George N. Whittlesey, for the respondent.

I do not think these allegations of the amended answer should have been stricken out as irrelevant and improper. As to the 4th paragraph of the answer which was stricken out, it sets out as a part of a defense of payment a construction of the agreement insisted upon by the defendant, which is in substance a denial of the allegation of the complaint that in and by the agreement pleaded in the complaint it was further agreed that certain property therein termed merchandise was excluded from the property that was to be sold for the $230,000 which has been paid by the defendant, and that the articles set forth in Schedule 2 annexed to the complaint were a part of the merchandise for which the defendant was to pay the sum of $2,776.37 in addition to the other consideration to be paid.

I also think that the denial of the allegation in the complaint that the defendant had failed to pay for these articles was proper and should not have been stricken out. Whether or not an allegation that the defendant had failed to pay for these articles was a neces

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sary allegation of the complaint, the plaintiff has seen fit to insert such an allegation, and to complete the defense of payment which is the first defense the defendant had the right to deny the allegation in the complaint that he had neglected and refused to pay for the merchandise.

1 also think the clause stricken out in the second separate defense in the answer was improperly stricken out. The defendant alleges for a second defense that subsequent to the making of the agreement between the plaintiff and the defendant, and prior to the commencement of the action, a dispute arose between the plaintiff and the defendant as to whether the defendant was liable to the plaintiff in the sum of $2,776.37, the value of those articles set forth in Schedule 2 annexed to the complaint, and that an agreement was made by which that amount in dispute was deposited in a national bank, and in connection with that defense he was entitled to deny the allegation of the complaint that these articles were merchandise and that he was liable to pay therefor or bad refused to pay. Whether or not that is a good defense it is not necessary for us to determine; but it was an essential part of the defense to plead that as a matter of fact these articles were not merchandise as described in the agreement, it is settled that each defense must be complete in itself and cannot be assisted by a general denial elsewhere in the answer.

The order appealed from is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.