By the Court
— Flandrau, J.
This is a question of pleading. The action is upon a promissory note for $740, payable in ninety days, with interest after maturity at three per cent, per month. The complaint admits a payment at the maturity of tiie note of $240. The Defendant answered, setting up an agreement that the note should be made payable at “ Ullman’s, on Jackson street in the city of St. Paul,” and that he had made arrangements and been ready to pay the same,' but it [130] had not been presented, and that the sum of five hundred dollars was then due on the note, which corresponds with the statement in the complaint as to the amount due. It also alleges this agreement to have been made “ when the note mentioned in the Plaintiff’s complaint became due and payable.” This answer was demurred to, and the demurrer properly sustained, as such an agreement, made “ when the note became due and payable,” was without consideration and imposed no obligation upon the Plaintiff whatever. The Defendant, under the permission of the Court, amended his answer, and alleged that “about two weeks prior to the time when said note mentioned in the Plaintiff’s complaint became due and payable,” the agreement was made that the note should be payable at the store of Joseph Ullman, &c.; and to avoid the difficulty of want of consideration which was encountered in the first answer, alleges, that “in consideration thereof,, and in about ten days thereafter, this Defendant paid the said Plaintiff the sum of three hundred dollars on said note.” Then follow allegations o a deposit of the money with Ullman, which from the view I take of the ease will be deemed sufficient. The Plaintiff then moved for an order requiring the Defendant to make these allegations more certain and definite, or that they be stricken out under Section 76 of the JR. S. on page 339, as amended on page 9 of the Amendments. The Court granted the motion, and ordered the answer to be amended in these particulars, or be stricken out altogether, and tlia¿ Plaintiff in such an event take judgment as for want of an answer. The Defendant failing to amend, judgment was entered for the amount claimed in the complaint, — that is, the note less the $240 payment, with interest from the date of its maturity until judgment, at three per cent, per month. Prom this judgment the Defendant appeals.
The reason that in stating the facts of the case I have mentioned the first answer which was put in by the Defendant, and which was disposed of on demurrer, when the questions to be decided arise on the amended answer, is this: because, when a pleading is attacked, as this one was, for being “ evasive and uncertain,” and the Court is called upon to determine whether [131] tlie same ought to be amended, it certainly enjoys a more extensive range of examination than when deciding a question raised by demurrer. The sufficiency of the pleading, as appears upon its face, is not alone the criterion by which the Court is to be guided, but to some extent the good faith of the pleader is called into question; and I apprehend that the moving party may produce proof outside of the pleading itself to satisfy the Court that the allegations are intended to evade a direct averment, which the pleader cannot in conscience make, and that the Court may consider the nature of allegations themselves, and the relations which the pleader sustained to the subject matter of them, as well as the words in which they are couched, to determine the propriety of compelling more certainty and precision in their expression. See Howard's H. H. Code, page 253, where the result of the authorities is given on the subject of striking out sworn answers as sham. Although the subject is somewhat different from the one under consideration, yet it involves the same principles, as both are methods of striking out sworn answers, on motion.
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By the Court
— Flandrau, J.
This is a question of pleading. The action is upon a promissory note for $740, payable in ninety days, with interest after maturity at three per cent, per month. The complaint admits a payment at the maturity of tiie note of $240. The Defendant answered, setting up an agreement that the note should be made payable at “ Ullman’s, on Jackson street in the city of St. Paul,” and that he had made arrangements and been ready to pay the same,' but it [130] had not been presented, and that the sum of five hundred dollars was then due on the note, which corresponds with the statement in the complaint as to the amount due. It also alleges this agreement to have been made “ when the note mentioned in the Plaintiff’s complaint became due and payable.” This answer was demurred to, and the demurrer properly sustained, as such an agreement, made “ when the note became due and payable,” was without consideration and imposed no obligation upon the Plaintiff whatever. The Defendant, under the permission of the Court, amended his answer, and alleged that “about two weeks prior to the time when said note mentioned in the Plaintiff’s complaint became due and payable,” the agreement was made that the note should be payable at the store of Joseph Ullman, &c.; and to avoid the difficulty of want of consideration which was encountered in the first answer, alleges, that “in consideration thereof,, and in about ten days thereafter, this Defendant paid the said Plaintiff the sum of three hundred dollars on said note.” Then follow allegations o a deposit of the money with Ullman, which from the view I take of the ease will be deemed sufficient. The Plaintiff then moved for an order requiring the Defendant to make these allegations more certain and definite, or that they be stricken out under Section 76 of the JR. S. on page 339, as amended on page 9 of the Amendments. The Court granted the motion, and ordered the answer to be amended in these particulars, or be stricken out altogether, and tlia¿ Plaintiff in such an event take judgment as for want of an answer. The Defendant failing to amend, judgment was entered for the amount claimed in the complaint, — that is, the note less the $240 payment, with interest from the date of its maturity until judgment, at three per cent, per month. Prom this judgment the Defendant appeals.
The reason that in stating the facts of the case I have mentioned the first answer which was put in by the Defendant, and which was disposed of on demurrer, when the questions to be decided arise on the amended answer, is this: because, when a pleading is attacked, as this one was, for being “ evasive and uncertain,” and the Court is called upon to determine whether [131] tlie same ought to be amended, it certainly enjoys a more extensive range of examination than when deciding a question raised by demurrer. The sufficiency of the pleading, as appears upon its face, is not alone the criterion by which the Court is to be guided, but to some extent the good faith of the pleader is called into question; and I apprehend that the moving party may produce proof outside of the pleading itself to satisfy the Court that the allegations are intended to evade a direct averment, which the pleader cannot in conscience make, and that the Court may consider the nature of allegations themselves, and the relations which the pleader sustained to the subject matter of them, as well as the words in which they are couched, to determine the propriety of compelling more certainty and precision in their expression. See Howard's H. H. Code, page 253, where the result of the authorities is given on the subject of striking out sworn answers as sham. Although the subject is somewhat different from the one under consideration, yet it involves the same principles, as both are methods of striking out sworn answers, on motion.
"When the first answer was disposed of on demurrer, it did not thereby become annihilated and stricken from the record of the Court, but simply ceased to have the force of a good answer in the case; if the Defendant had not seen fit to file a new answer, then the complaint, the bad answer and the demurrer would have been the pleadings that would have been inserted in the Judgment Boll, and when he did file an amended answer, the first one, although superseded in its office of contributing towards the formation of the issue, still remains as a, record of the Court which may be judicially recognized when brought into question. On this motion, the allegations assailed were exceedingly loose in their expression. To say that an agreement was made “ about two weelcs prior ” to any event, is as much to say that it was made within nine or eight days of it, as to say that it was made within sixteen or twenty days of it, or any other time between one and three weeks of the event; because “ about" a given time, is as much indicative of a little less, as it is of a little greater period: therefore, it may as well be understood that this agreement set [132] up in the amended answer took place eight or nine days prior to the maturity of the note, as a greater period of time. The allegation of the payment of three hundred dollars in order to serve as a consideration for this agreement, must have been paid prior to the maturity of the note, because a payment after maturity would be nothing more than the fulfillment of a legal obligation, which, in itself, is never sufficient to support a new contract. The payment is alleged to have been made “ in about ten days ” after the making of the agreement for which it was to form the consideration. This allegation is subject to the same criticism which has been made upon the other, and may throw the payment beyond the maturity of the note, as well as prior to that event. The time of the payment is material in determining whether the contract was valid or not. The party pleading such a contract, is bound to state it with sufficient certainty, at least, to make the probabilities in favor of its validity; here, they are quite as much against the payment having been made before maturity, as in favor of such fact. This is discussing the allegations upon their face alone, but when we look upon their peculiar wording, framed as they were after a decision pointing out the insufficiency of the allegations in the first answer, and compared with the former sworn allegation that the agreement was made “ when the note became due and payable,” and the entire absence of any allegation of payment of three hundred dollars, it is almost impossible to resist the conclusion, that the form of averment is adopted in order to present a defence, which the facts, if correctly and definitely stated, would not warrant. I have no doubt at all that the Court took the right view of these allegations, and properly ordered them made more certain if the Defendant wished to avail himself of the benefit of the agreement. But it does not follow that because the allegation of the payment of the three hundred dollars is not pleaded with sufficient certainty as to time, to render it effectual as a consideration for the agreement to pay the note at a particular place, that it is not well pleaded as a payment on the note. There can be no doubt from the answer that the Defendant means to allege the payment of three hundred dollars upon the note; and as a payment simply, [133] the time is immaterial if it appears to have been made before the commencement of the action. The Counsel for the Plaintiff contends that, being pleaded in this particular way, the Court did right to strike it out altogether if insufficient for that object. I cannot agree with him in this respect. If the Defendant refused to amend, the Court was right in striking everything out of the answer except this allegation of payment, because all the rest of it is dependent upon the one fact of whether this payment was made at a time prior to the maturity of the note, so as to make it a consideration for the agreement to pay it at Ullman’s; and if this fact fails, the rest of the answer falls with it, but the fact of payment stands unaffected. •
Taking th§ whole case together, it would seem that the piayment alleged in the answer is the same mentioned in the complaint, changed in amount, and left doubtful as to time, in order to disguise its identity; but the presumption, or rather suspicion, is perhaps not strong enough to act upon. The Court erred in ordering the whole answer stricken out. It should have ordered the allegations made certain in the particulars complained of, or that they all be stricken out except that of the payment, leaving the Plaintiff to reply as he might be advised.
The order striking out the Defendant’s answer is so modified as to allow the Defendant to amend by making certain the allegations concerning the time of the making of the agreement, and the payment of the three hundred dollars under it, within ten days after service of the order to be entered upon this decision, and should he not so amend, then the answer to stand as alleging the payment of three hundred dollars on the note. The question of damages and costs will necessarily be re-heard, so they are not mentioned here. As the Plaintiff is entitled upon the pleadings to a judgment in his favor in any event, the one now entered may stand as his security until the decision of the case as it will now be presented.
The Defendant should recover ten dollars costs of this Court and his necessary disbursements.