McIntire v. Randolph

50 N.H. 94

Opinion

Dob, J.

" In any action, the defendant may file a confession of the plaintiff’s right to recover certain real estate, or a certain amount of debt or damages, and plead to the residue of his claim; and if the plaintiff further prosecutes the action, and fails to recover more than is so confessed, the defendant shall recover his costs from the date of such confession.” Gen. Stat., chap. 208, sec. 2.

The plaintiff’s cause of action, in this case, seems to be regarded by both parties as single and indivisible; and we will take it to be so, and that the declaration shows it to be so. The defendant filed a confession of the plaintiff’s right to recover a certain amount of damages, and pleaded the general issue to the residue of his claim. And the question is, whether, upon such a declaration, confession, and plea, any question is open except the amount of the plaintiff’s damages.

It is claimed that, in a suit for damages, when the cause of action is indivisible, and a confession is filed, the plea of the general issue is good for nothing except to enable the defendant to be heard on the assessment of damages. But he would have the right to be heard on the assessment if any other plea were filed instead of the general issue. He has the same right when nothing is pleaded but the statute of limitations, or a license, or right of way. If the only effect of the general issue, in this case, is to give the defendant a hearing on the damages, any other plea would answer the purpose as well as the general issue. And it would come to this, that any plea would be as good, and as bad, as any other. This is not a common state of things when any plea is good for anything.

But the right of a defendant to be heard on the damages is not derived from the form or nature of his plea, or the issue joined thereon. Damages are claimed in the declaration, and their assessment is the natural and legal consequence of the maintenance of the action upon the issues of law or fact; but the trial of an issue of law or fact, and the assessment of damages, are separate and distinct. After judgment for the plaintiff on demurrer, the defendant’s right to be heard on the assessment of damages is the same as in the assessment of damages at the trial of an issue of fact. De Gaillon v. L’Aigle, 1 B. & P. 368. Damages are to be assessed if there is no plea. After a default, when the damages are uncertain, the amount is determined by a jury on motion of either party (West v. Whitney, 26 N. H. 314), and the defendant is heard as well as the plaintiff. When the issues are properly tried and found for the party claiming damages, but there is error in the assessment of damages, and a new trial on that point (McKean v. Cutler, 48 N. H. 374, 375), the party against whom damages are to be assessed is entitled to be heard on the assessment, although the issues are disposed of and are not tried again. The statute permits, but does not require, a defendant who confesses a part, to plead to the residue of the plaintiff’s claim. He may confess a part without pleading to the residue, and be heard on the assessment of damages. The general issue therefore is of no avail in this case, unless it is a traverse of the facts necessary to the maintenance of the action. If, as against the general issue, the confession is a conclusive .admission of the cause of action set out in the declaration, it follows that the defendant cannot plead the general issue. If it is a matter of law that, on the face of the record, the plea of the general issue is overthrown by the confession, then the plea of the general issue presents no issue of fact, and is a bad plea, and would be so held on demurrer; and the plaintiff should have demurred to it, instead of joining issu¿ and proceeding to trial thereon. Finleyson v. Mackensie, 3 Bing. N. C. 824. And if the general issue is bad, every other plea hitherto used at common law would be bad. Had the plaintiff demurred to the general issue, and his demurrer been sustained, the right of the defendant to be heard on the assessment of damages would not have been involved in the destruction of the general issue.

The statute is, that the defendant may plead to the residue, in any action. If every plea to the residue, filed with a confession, is bad on demurrer when the cause of action alleged in the declaration is indivisible, the defendant cannot plead to the residue in such an action. That would be a material limitation to put upon the statute by construction. And if such is the proper construction, it would apply to all cases in which the jury find, by the evidence, that an injury complained of is confessed, and they should be instructed accordingly. It would be unreasonable to limit the defence to the assessment of damages ip those cases only in which the cause of action appears in the declaration to be indivisible. The divisibility of the cause of action cannot affect the principle by which this question is to be decided. If the defence is limited by the confession to the assessment of damages, on any cause of action, it is because that cause of action is declared upon by the plaintiff and confessed by the defendant. And when the identity of that cause of action does not appear in the declaration and confession, the jury may find it in the evidence. It would be immaterial whether it were found by the court or by the jury. Corey v. Bath, 35 N. H. 548-550. The result would be, that in a majority of cases the defendant would have no substantial right to plead to the residue.

It has been said that when the defendant confesses a certain amount of damages, he admits conclusively every fact which the plaintiff would be obliged to prove in order to recover that sum; and if the injui’y complained of by the plaintiff is the one confessed by the defendant, the only question is one of damages, because, if the defendant is liable for a part, he is liable for the whole. So it might be said that a plea of license or right of way, admits the defendant’s liability under the general issue. The objection to this reasoning is, that, however logical it may be, it is not allowed in pleading and evidence, If this kind of reasoning is applied to the general issue when accompanied by a confession, it must be applied to the general issue when accompanied by any plea in confession and avoidance; and the result would be a reconstruction of the system of pleading. When a movement was made in that direction, by the court in Massachusetts, the legislature restored the common-law rule. Alderman v. French, 1 Pick. 1. But the rule seems not to be understood in that State as it here. Bacon v. Charlton, 7 Cush. 585; Buzzell v. Snell, 25 N. H. 480.

"When a defendant pleads nothing but a license or right of way, and does not maintain his plea, the plaintiff is entitled to a verdict for damages because the plea is a confession that the defendant is liable if his justification is not made out. But when he also pleads the general issue, the jury are not instructed that the confession contained in the special plea is evidence against the defendant on the general issue; nor is the general issue held bad on demurrer on the ground that it is inconsistent with the same confession. If the general issue is untouched by such a confession, why should it be destroyed by a confession made under the statute ? The confession contained in a plea of license or right of way, is an admission of every fact which the plaintiff would be obliged to prove under the general issue, but it is an admission made for the purpose of pleading a license or right of way, and not for the purpose of destroying the general issue, and its operation and effect are' confined to the plea which contains it. So a confession under the statute is an admission of every fact which the plaintiff would be obliged to prove under the general issue ; but it is an admission made for the purpose of guarding against costs, and not for the purpose of destroying the general issue or any other plea, and its operation and effect are confined to the purpose for which it is made, which is the only purpose intimated in the statute. To allow it to affect any other part of the pleadings, and to give the plaintiff any other benefit than a judgment for the amount confessed, would be a departure from an elementary principie of common law, when no such departure is suggested by the statute,

It has been said that the admission in a confession is at least as strong as in a default. But in a default there is no opportunity for the operation of the rule which makes pleas independent of each other, and prevents an admission in one from being used to defeat another.

The plaintiff claims that a confession is not a plea, and not subject to the rules of pleading. It is not a plea in the strict sense of the common law, but it is a part of the record on the defendant’s side, and a part of the pleadings which the defendant is, by statute, allowed to file. And it is subject to the rule relating to the independence of pleas. Pittsfield v. Barnstead, 38 N. H. 121.

“ Where several pleadings are filed, they are to be tried precisely as if each was pleaded alone; and the admissions, expressed or implied, in one plea, cannot be used as evidence against the party upon other issues. * * * The plea of tender is of course not evidence upon the general issue for any purpose, but the independent fact of the payment of money into court with the plea of tender, is an admission of the contract declared on; but this fact is to be proved by the plaintiff like any other admission. Upon the pleadings in such case, nothing appears which changes the ordinary effect of the general issue.” Buzzell v. Snell, 25 N. H. 480.

Whether the payment of money into court with a plea of tender, or under the common rule, should be regarded as an admission, or evidence of an admission, of a liability to pay a larger sum, or whether it should be held to be an incident annexed to the plea or .rule and therefore subject to the general principles of pleading, or an offer to compromise and therefore subject to the general principles of evidence, we do not now undertake to decide. The authorities on that subject are not satisfactory to all the members of the court. Without inquiring into the effect of the independent fact of a payment of money into court, we follow Pittsfield v. Barnstead in holding that a confession is governed by the principle which forbids one plea to be used to obliterate, annul, or disprove another plea; we follow Buzzell v. Snell, in holding that a plea of tender is not evidence upon the general issue; and we are of opinion that the confession is a part of the pleadings, and not an admission to be proved like a payment of money in cóurt or out of court, and that it cannot be employed by the plaintiff against the plea of the general issue, and does not prevent the defendant from introducing evidence in support of that plea. The defendant might file a confession of the plaintiff’s right to recover $75, and “ plead to the residue of his claim,” and denying his right to recover any sum beyond $75, was pleading to the residue of his claim. The plaintfff’s right to recover any sum beyond $75 was properly traversed, and, according to the universal rule of pleading, that traverse could not be affected by any other part of the defendant’s pleadings.

This result of the application of the general principle of law is eminently just. Many doubtful claims are prosecuted. By a compromise verdict, or other accident, a judgment may be reached, unexpected by either party. There are many uncertainties and risks. Our conclusion puts the parties on equal ground.

New trial granted.