Lay Gas MacHine Co. v. Falls of Neuse Manufacturing Co.

91 N.C. 74

• Court: Supreme Court of North Carolina
• Decided: October 5, 1884
• Status: Published

Opinion

Sjiith, C. J.,

after stating the case. We'concur in the opinion of the court ’that while the answer concedes the contract of indebtedness, it sets up no legal defence to the plaintiff’s recovery.

It is no sufficient answer to an allegation of a matter charged to be within the personal knowledge of the defendant, his possession for more than a year and failure to prefer any complaint or make known his dissatisfaction, to say that he has no knowledge or information sufficient to form a belief as to the time when complaint was first made, without saying that any was made at all. Facts charged to be known to a party ought to be met, if not admitted, with a direct denial, or the want of recollection if they cannot be recalled to memory. Pomeroy on Rem. & Rem. Rights, § 641, and cases cited in note; Field, J., in Curtis v. Richards, 9 Cal., 33.

The defence arising upon a supposed warranty of false representation is unavailing, since the parties in their agreement provide for a return of the machine at the defendant’s election after a sufficient trial; and this method of redress supersedes the others, if any other upon the facts is open to the defendant in the absence of that agreed upon.

Whether the answer be deemed frivolous or a concession of the plaintiff’s right of actiori, to which no legal defence is offered, the ruling of the court and the rendition of the judgment was correct in law and must be upheld. Let the judgment be affirmed.

No error. Affirmed.