Bonysson v. Thompson

Court of Appeals of Kentucky

Bonysson v. Thompson

3 Ky. Op. 355, 1869 Ky. LEXIS 426

DecidedNovember 23, 1869

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This text of 3 Ky. Op. 355 (Bonysson v. Thompson) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bonysson v. Thompson, 3 Ky. Op. 355, 1869 Ky. LEXIS 426 (Ky. Ct. App. 1869).

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Opinion

Opinion of the Court by

Judge Williams:

Acording to the decision of this court in the case of Webb v. Jeffries, etc., 2 Bush 221, and the more recent case of Thurston’s admr. v. Oldham, the demurrer to the answer of thej defendant was erroneously sustained.

It was said in the last named case in accordance with the cases of Frances v. Frances, 18 B. Monroe, 57, and said case of Webb v. Jeffries etc., that

“what is necessary to constitute a sufficient denial in any particular case must depend on the import of the petition or of the counter-claim or set-off presented by an answer. Such pleadings when founded on an account, as in this case, have been construed to relate to it and by implication, to allege what may be reasonably inferred from the statement of the items of the account; and if for example the foundation of the action is an ordinary account for goods, the petition, although in the brief form prescribed for use under the Code, will be taken to allege a sale and delivery of the goods to the party charged upon an express or implied promise to pay therefor the prices stated in the [356]*356account, and the answer therefore, to be sufficient, as a denial, should controvert some material part of these actual or constructive averments.”

King, for appellant.

The paper filed showing the aggregate sum claimed, is not referred to in the petition, as it should have been if intended to be treated as the foundation of the action. (Hill, etc. v. Barrett, etc., 14 B. Monroe, 83.) But if it was, as it is not a bill of particulars, it does not render the averments of the petition more specific, nor render greater particularity in the answer necessary. The bill of particulars afterwards filed might have had that effect, but according to the case of Webb v. Jeffries, etc., supra, as it was not so referred to as to make it the foundation of the action, the defendant was not bound to respond to it.

The only remaining question, then, is whether the answer is sufficiently explicit so far as it purports to controvert the plaintiffs claim, as set forth in the petition.

The defendant could not be required to admit or deny particular items of the claim, for it was not so alleged in terms or by implication. But admitting the sum of $150 of the account as just, including the credit of $13, it seems to us the answer sufficiently controverted the residue of the claim as presented by the petition.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

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Opinion of the Court by

Judge Williams:

Acording to the decision of this court in the case of Webb v. Jeffries, etc., 2 Bush 221, and the more recent case of Thurston’s admr. v. Oldham, the demurrer to the answer of thej defendant was erroneously sustained.

It was said in the last named case in accordance with the cases of Frances v. Frances, 18 B. Monroe, 57, and said case of Webb v. Jeffries etc., that

“what is necessary to constitute a sufficient denial in any particular case must depend on the import of the petition or of the counter-claim or set-off presented by an answer. Such pleadings when founded on an account, as in this case, have been construed to relate to it and by implication, to allege what may be reasonably inferred from the statement of the items of the account; and if for example the foundation of the action is an ordinary account for goods, the petition, although in the brief form prescribed for use under the Code, will be taken to allege a sale and delivery of the goods to the party charged upon an express or implied promise to pay therefor the prices stated in the [356]*356account, and the answer therefore, to be sufficient, as a denial, should controvert some material part of these actual or constructive averments.”

King, for appellant.

The paper filed showing the aggregate sum claimed, is not referred to in the petition, as it should have been if intended to be treated as the foundation of the action. (Hill, etc. v. Barrett, etc., 14 B. Monroe, 83.) But if it was, as it is not a bill of particulars, it does not render the averments of the petition more specific, nor render greater particularity in the answer necessary. The bill of particulars afterwards filed might have had that effect, but according to the case of Webb v. Jeffries, etc., supra, as it was not so referred to as to make it the foundation of the action, the defendant was not bound to respond to it.

The only remaining question, then, is whether the answer is sufficiently explicit so far as it purports to controvert the plaintiffs claim, as set forth in the petition.

The defendant could not be required to admit or deny particular items of the claim, for it was not so alleged in terms or by implication. But admitting the sum of $150 of the account as just, including the credit of $13, it seems to us the answer sufficiently controverted the residue of the claim as presented by the petition.

Wherefore, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

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3 Ky. Op. 355, 1869 Ky. LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonysson-v-thompson-kyctapp-1869.

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