By the Court,
Sanders, C. J.:
This is an appeal from an order overruling plaintiff’s demurrers to defendant’s- two alleged affirmative and separate partial defenses to the cause of action set out in the complaint, and an appeal from a judgment on the pleadings.
The plaintiff brought his action against the Western Union Telegraph. Company to recover a money judgment for the sum of $3,000 as damages for its negligent failure to deliver an interstate telegraphic message written upon one of the defendant’s blank forms furnished the sender. The plaintiff alleges that -by reason of the negligence and carelessness of the defendant he lost a lucrative position, or employment, and was damaged in the sum stated. The defendant demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. The defendant thereupon answered, and, after denying the allegations of the complaint, set up two alleged affirmative partial defenses, but one of which, in view of the judgment, it is necessary to consider. The defense was:
“Further answering said complaint, and for a separate and partial defense, plaintiff [defendant] alleges:
“(1) That, if there ever was delivered to this plaintiff [defendant] a message such as that referred to and [416]*416described in paragraph VI of the complaint, such message was delivered to and accepted by the defendant subject to the terms of a certain contract in writing, a copy of which is annexed hereto and made a part of this answer, and marked ‘Exhibit A,’ and which is hereto referred to and made a part hereof, as if set forth at length herein.
“(2) That, as more fully appears from said Exhibit A hereto annexed, it was a term and condition of the said contract, subject to which, and subject to which only, such message was accepted by the defendant, that the defendant should not be liable for mistakes or delays in the transmission or delivery, or for nondelivery of any unrepeated message, beyond the amount received for sending the same; and that the said message was an unrepeated message, and defendant was not directed or requested to repeat the same, and all that the defendant received in exchange for its obligation in respect to said message was the sum of $1.28, which was defendant’s ordinary and reasonable charge for the transmission of such a message, without repetition, from the point of origin to the point of destination named therein, including its delivery at destination.”
The plaintiff interposed a demurrer to this alleged defense, upon the ground that it did not state facts sufficient to constitute a defense. The court overruled the demurrer, and caused to be entered this judgment:
“The plaintiff having demurred to the first and second separate and partial defense in the defendant’s answer, and said demurrers having been duly argued, and after due consideration the said demurrers having been overruled, and the court having made and entered an order overruling the same, the plaintiff thereupon refused to reply to the affirmative matters contained in defendant’s answer, and waived further time to reply, and thereupon the default of the plaintiff for want of reply is entered, and the defendant moves the court for judgment upon the pleadings, which said motion is granted.
[417]*417“Whereupon, by reason of the law and the premises, it is by the court ordered, adjudged, and decreed that the plaintiff, Sterling Parks, do have and recover from the Western Union Telegraph Company, a corporation, defendant, the sum of $1.33 (being the sum of $1.28, together with interest thereon from the 3d day of February, 1920, to date, amounting to $.05), together with interest on $1.28 thereof, at the rate of 7 per cent per annum from date hereof until paid.”
1. It is obvious that the judgment is based upon a failure of the plaintiff to file and serve a reply after the overruling of his demurrer. Section 115 of the Practice Act, as amended (Stats. 1915, p. 192) provides:
“When the answer contains new matter, constituting a defense, or a counterclaim, the plaintiff shall, within ten days after service of such answer or within ten days after notice of the overruling of the demurrer thereto, serve and file a reply.”
The trial court evidently took the position that the alleged affirmative defense was new matter, constituting a full and complete defense to the plaintiff’s cause of action; and that, the plaintiff having failed to serve and file a reply upon notice of the overruling of his demurrer, the defendant was entitled to j udgment on the pleadings. It thus' appears that the judgment upon the pleadings was for the failure of the plaintiff to serve a reply to so-called new matter constituting a defense. We are of the opinion that such judgment cannot be made to serve the purpose of an appeal from an order overruling a demurrer. We therefore shall consider in this opinion only the appeal from the judgment upon the pleadings.
This narrows the question for determination to this proposition: Was the district court, in the present state of the'pleadings, authorized to render judgment upon the pleadings ? Our conclusion upon this proposition is, in brief, as follows: The complainant charges paragraph VI of the complaint:
“That thereupon the said C. E. Adams, on the 3d day [418]*418of February, 1920, delivered to defendant at its office at San Francisco, Cal., a message, a true copy of which is hereunto attached, marked ‘Exhibit A,’ and is hereby specifically made a part of this complaint, at the same time informing defendant that he desired a prompt transmission and delivery of said message to an address therein named regardless of expense, and that thereupon defendant agreed for and in consideration of the sum of $1.28, which said sum was then and there paid by the said C. E. Adams to defendant, to promptly transmit and deliver to an addressee therein named said message, provided such addressee could be by it found by the exercise of reasonable diligence.”
Paragraph IV of the answer, corresponding to paragraph VI of the complaint, is as follows:
“Defendant admits that on the 3d day of February, 1920, the said C. E. Adams delivered at its office in San Francisco, Cal., a message, a true copy of which is attached to the complaint and marked Exhibit A. Except as herein specifically admitted, defendant, upon information and belief, denies each and all of the matters and allegations contained in paragraph VI of the complaint.”
It is clear that paragraph IV of the answer constitutes a denial of the facts alleged in paragraph VI of the complaint, and thus tenders an issue independent of the new matter (if there be new matter) set up as an affirmative defense to the facts alleged in paragraph VI of the complaint. This being true, the court was not authorized to give judgment for the defendant on motion, because of the want of a reply to new matter (if there be such) contained in the defense, for the reason that there still remained an issue of fact which was still to be disposed of. Comstock v. Hallock, 2 Edm. Sel. Cas. (N. Y.) 69.
2. We are further of the opinion that the alleged partial affirmative defense, as above set out, amounts to this: That the telegram sued on (if received at all for [419]
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By the Court,
Sanders, C. J.:
This is an appeal from an order overruling plaintiff’s demurrers to defendant’s- two alleged affirmative and separate partial defenses to the cause of action set out in the complaint, and an appeal from a judgment on the pleadings.
The plaintiff brought his action against the Western Union Telegraph. Company to recover a money judgment for the sum of $3,000 as damages for its negligent failure to deliver an interstate telegraphic message written upon one of the defendant’s blank forms furnished the sender. The plaintiff alleges that -by reason of the negligence and carelessness of the defendant he lost a lucrative position, or employment, and was damaged in the sum stated. The defendant demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. The defendant thereupon answered, and, after denying the allegations of the complaint, set up two alleged affirmative partial defenses, but one of which, in view of the judgment, it is necessary to consider. The defense was:
“Further answering said complaint, and for a separate and partial defense, plaintiff [defendant] alleges:
“(1) That, if there ever was delivered to this plaintiff [defendant] a message such as that referred to and [416]*416described in paragraph VI of the complaint, such message was delivered to and accepted by the defendant subject to the terms of a certain contract in writing, a copy of which is annexed hereto and made a part of this answer, and marked ‘Exhibit A,’ and which is hereto referred to and made a part hereof, as if set forth at length herein.
“(2) That, as more fully appears from said Exhibit A hereto annexed, it was a term and condition of the said contract, subject to which, and subject to which only, such message was accepted by the defendant, that the defendant should not be liable for mistakes or delays in the transmission or delivery, or for nondelivery of any unrepeated message, beyond the amount received for sending the same; and that the said message was an unrepeated message, and defendant was not directed or requested to repeat the same, and all that the defendant received in exchange for its obligation in respect to said message was the sum of $1.28, which was defendant’s ordinary and reasonable charge for the transmission of such a message, without repetition, from the point of origin to the point of destination named therein, including its delivery at destination.”
The plaintiff interposed a demurrer to this alleged defense, upon the ground that it did not state facts sufficient to constitute a defense. The court overruled the demurrer, and caused to be entered this judgment:
“The plaintiff having demurred to the first and second separate and partial defense in the defendant’s answer, and said demurrers having been duly argued, and after due consideration the said demurrers having been overruled, and the court having made and entered an order overruling the same, the plaintiff thereupon refused to reply to the affirmative matters contained in defendant’s answer, and waived further time to reply, and thereupon the default of the plaintiff for want of reply is entered, and the defendant moves the court for judgment upon the pleadings, which said motion is granted.
[417]*417“Whereupon, by reason of the law and the premises, it is by the court ordered, adjudged, and decreed that the plaintiff, Sterling Parks, do have and recover from the Western Union Telegraph Company, a corporation, defendant, the sum of $1.33 (being the sum of $1.28, together with interest thereon from the 3d day of February, 1920, to date, amounting to $.05), together with interest on $1.28 thereof, at the rate of 7 per cent per annum from date hereof until paid.”
1. It is obvious that the judgment is based upon a failure of the plaintiff to file and serve a reply after the overruling of his demurrer. Section 115 of the Practice Act, as amended (Stats. 1915, p. 192) provides:
“When the answer contains new matter, constituting a defense, or a counterclaim, the plaintiff shall, within ten days after service of such answer or within ten days after notice of the overruling of the demurrer thereto, serve and file a reply.”
The trial court evidently took the position that the alleged affirmative defense was new matter, constituting a full and complete defense to the plaintiff’s cause of action; and that, the plaintiff having failed to serve and file a reply upon notice of the overruling of his demurrer, the defendant was entitled to j udgment on the pleadings. It thus' appears that the judgment upon the pleadings was for the failure of the plaintiff to serve a reply to so-called new matter constituting a defense. We are of the opinion that such judgment cannot be made to serve the purpose of an appeal from an order overruling a demurrer. We therefore shall consider in this opinion only the appeal from the judgment upon the pleadings.
This narrows the question for determination to this proposition: Was the district court, in the present state of the'pleadings, authorized to render judgment upon the pleadings ? Our conclusion upon this proposition is, in brief, as follows: The complainant charges paragraph VI of the complaint:
“That thereupon the said C. E. Adams, on the 3d day [418]*418of February, 1920, delivered to defendant at its office at San Francisco, Cal., a message, a true copy of which is hereunto attached, marked ‘Exhibit A,’ and is hereby specifically made a part of this complaint, at the same time informing defendant that he desired a prompt transmission and delivery of said message to an address therein named regardless of expense, and that thereupon defendant agreed for and in consideration of the sum of $1.28, which said sum was then and there paid by the said C. E. Adams to defendant, to promptly transmit and deliver to an addressee therein named said message, provided such addressee could be by it found by the exercise of reasonable diligence.”
Paragraph IV of the answer, corresponding to paragraph VI of the complaint, is as follows:
“Defendant admits that on the 3d day of February, 1920, the said C. E. Adams delivered at its office in San Francisco, Cal., a message, a true copy of which is attached to the complaint and marked Exhibit A. Except as herein specifically admitted, defendant, upon information and belief, denies each and all of the matters and allegations contained in paragraph VI of the complaint.”
It is clear that paragraph IV of the answer constitutes a denial of the facts alleged in paragraph VI of the complaint, and thus tenders an issue independent of the new matter (if there be new matter) set up as an affirmative defense to the facts alleged in paragraph VI of the complaint. This being true, the court was not authorized to give judgment for the defendant on motion, because of the want of a reply to new matter (if there be such) contained in the defense, for the reason that there still remained an issue of fact which was still to be disposed of. Comstock v. Hallock, 2 Edm. Sel. Cas. (N. Y.) 69.
2. We are further of the opinion that the alleged partial affirmative defense, as above set out, amounts to this: That the telegram sued on (if received at all for [419]*419transmission) contained an express condition limiting the defendant’s liability; and that the telegram (if received at all for transmission) was delivered upon such limitation; and that the contract pleaded as an affirmative defense is governed by the federal law; and that, by virtue of that law, defendant’s liability was limited by the terms and conditions of the contract. There is no doubt that the alleged defense, as above quoted, was intended to serve the purpose'of a plea in confession and avoidance. Great pains are taken not to confess anything and to still preserve intact the benefit of the defendant’s denial to the cause of action stated in paragraph VI of the complaint.
3. New matter is matter in confession and avoidance or discharge. Ferguson v. Rutherford, 7 Nev. 385; Dixon v. Pruett, 42 Nev. 345, 177 Pac. 11.
4. As long, therefore, as the issue raised by the defendant’s denial of the plaintiff’s cause of action remained undisposed of, it is idle to claim that the court was authorized to render judgment upon the pleadings. We appreciate the fact that counsel for appellant has labored arduously to draw from this court an admission or expression that, as a matter of law, the plaintiff can recover upon an independent contract for the transmission and delivery of a special interstate message made with the defendant’s agent at the time of its acceptance for transmission where the only considération for the agreement was the regular rate charged for an unrepeated message. We decline to pass upon this question, for the reason that it is not involved in the question of the court’s authority to render judgment on the pleadings.
Entertaining the views that the court was not authorized to render judgment upon the pleadings, in the face of the outstanding and undetermined issue made by the complaint and answer, we conclude that the judgment must be reversed.
It is so ordered.