Robbins v. Lincoln

12 Wis. 1

Opinion

By the Court,

PAINE, J.

It may be conceded that in strict law the plaintiff could not have recovered in this action against Bobbins alone, for any part of the debt which accrued against Tweed & Bobbins, all of which, it appears from the evidence, Bobbins assumed, and promised the plaintiff to pay, when he bought out the interest of Tweed. There are authorities sustaining his right to recover upon such a state of facts. But even if he could not, it clearly appears both from the pleadings and the evidence, that a much larger amount than the balance claimed, was the individual debt of Bobbins alone. And tbat being so, no application of payments baying been shown to be made by Bobbins, at the time of paying, the creditor would have had the right to apply them as he pleased, or in the absence of an application by him, the court should have made such an application as would be equitable under all the circumstances. Stone v. Talbot, 4 Wis., 442. Same case, since decided by this court, and not yet reported. And we are clearly of opinion, that in this case, if the indebtedness was established so as to permit it, such an application of the payments should have been made, as would have allowed the plaintiff to recover the balance due, if any, in this suit. And we think the indebtedness, both against the partnership and against Bobbins individually, was sufficiently admitted by the pleadings and established by the evidence, to justify such an application. And in the first place, the condition of the pleadings has a very important bearing upon the case. It is to be observed that the answer does not deny the facts out of which the partnership indebtedness arose, but admits them, or rather sets them up as a defense against the claim upon Bobbins individually. It states that from January to July, the plaintiff worked for Tweed and Bobbins, and admits that for six months after that, he worked for Bobbins solely. Thus the substance of the allegations upon this point, is not a denial of the services alleged in the complaint, but a claim that for half of the time, they were rendered for Tweed & Bobbins, and that for this part the defendant was not singly responsible. The answer does deny that the plaintiff was to receive $400 per year, and avers that he was to receive only $300. But from the manner in which the case was submitted to the jury they necessarily passed upon this point, and must have found that the allegations of the complaint were true, as on the evidence they could not have found otherwise, there being none offered on the part of the defendant. The partnership indebtedness was therefore sufficiently admitted and established to justify an application of the payments credited in the complaint thereto. And though the judge did not submit it to the jury with reference to this question, but under instructions that the plaintiff might recover, even for the partnership indebted ness, and though tbis instruction might not have been technically correct, we still think the same result must have been arrived at by an equitable application of the payments, and should not feel bound therefore for that reason to reverse the judgment. But we do not say that this instruction was erroneous.

The allegation in the complaint, of the sale to the defendant of Massing's note, is not denied at all. The rendition of the services by the plaintiff’s wife, is not denied, but the answer avers that they were paid for in a particular manner, and to establish that, the burden of proof was on the defendant. It is evident therefore that the answer, so far, put in issue only the questions, whether the plaintiff was to have $400 or $800 per year for his services ; whether for half the time he worked for Tweed & Robbins; and whether the wife’s services had been paid for. Do the remaining allegations give it a different effect ? They relate to the sums averred in the complaint to have been paid out by the plaintiff for the use of the defendant. The first part of the answer denies that the plaintiff had laid out or expended any money for the defendant at his request, •“ except such sums as had been delivered by him to the plaintiff, while the plaintiff was in his employ, for that purpose.” This is clearly no denial that the plaintiff paid out the money, but on the contrary impliedly admits it. It avoids the liability, by averring that the money paid out, had been in fact furnished by the defendant for that purpose, and is like the answer in Hamilton vs. Hough, 13 How. Pr. R, 14, where the answer denied that the plaintiff had sold the defendant any goods that had not been paid for, which the Court held not to amount to a denial.

The latter part of the denial, avers that the defendant had no knowledge or information sufficient to form a belief, whether the plaintiff “had laid out and expended all the sums of money delivered by the defendant to the plaintiff for that purpose as aforesaid, and therefore had no knowledge or information sufficient to form a belief whether he was, or on a final accounting with the plaintiff, would be, indebted to the plaintiff in any sum whatever.” The latter part of this clause relates only to tbe legal conclusion of indebtedness, and if it contained a positive denial of indebtedness denying tbe facts alleged, out of wbicb tbe indebtedness would arise, it would amount to nothing. Drake vs. Cockroft 10 How. Pr. R., 377. Its effect depends therefore on tbe first clause, and it is very evident that if this referred expressly, to tbe allegations of tbe complaint, it would be very objectionable in point of form. Tbe complaint avers that tbe plaintiff paid out for tbe defendant divers sums of money, giving a great number of items. Suppose tbe answer should contain a specific denial that all those sums were paid out. Such a denial is not inconsistent with a perfect knowledge that all b>ut one bad been paid out. A denial in tbe precise language of tbe complaint is not sufficient; it must be of tbe substance of tbe allegation. And tbe rule as to answers in equity has been held applicable to answers under tbe code.. And under that rule, “it is not enough when a charge is made with all tbe circumstances of time and place, &c., to deny such charge generally in tbe words thereof, but in all cases where tbe charge embraces several particulars, the answer should he in the disjunctive, denying each particular or admitting some and denying others according to tbe fact.” Yan Santvoord PL, 426. It seems very obvious that to a complaint for goods sold and delivered, a denial that tbe plaintiff bad sold and delivered all tbe goods mentioned, would be insufficient. But tbe denial in this answer does not even amount to that. As before observed, tbe first, part of it is simply a denial that 'the plaintiff bad paid out any moneys, except such as tbe defendant bad furnished him for tbe purpose. This implies that be bad furnished tbe plaintiff moneys to be paid out, but contains no averment as to bow much. Tbe last part of tbe answer is a denial of knowledge or information sufficient to form a belief, not as to whether tbe plaintiff bad paid out all tbe moneys averred in tbe complaint, but all wbicb tbe “ defendant bad furnished as aforesaid.” He might have furnished more than tbe complaint claimed to have been paid out, and then tbe answer would have been consistent with a perfect knowledge that tbe plaintiff bad paid all be alleged. It seems clear, therefore that an answer aver- ^™e defendant bad furnished the plaintiff moneys to pay out, and then denying knowledge or information as to whether he had paid it all out, cannot be construed into a denial of knowledge that the plaintiff had paid out certain sums mentioned in the complaint. I think therefore, that, as a matter of strict pleading, the allegations in the complaint as to the paying out of money were not sufficiently denied to put the plaintiff upon the proofs.

And though this point was not made upon the argument, I have examined it the more closely by reason of the effect that a sufficient denial in this respect, would have had upon our conclusion as to the application of the payments, which latter point was. urged by the respondent’s counsel. Eor on the trial the evidence offered by the plaintiff to prove these items, was objected to, and excluded by the court. And it is very evident that if they are left out, even though all the other items sued for were fully established, the payments admitted by the complaint were more than enough to overbalance them; and therefore no such application of payments could have been made, as would leave any balance for the plaintiff. But, though it does not appear of record, it would seem that this evidence must have been excluded upon a mutual understanding that these items were for moneys which the plaintiff had paid out as agent of the defendant and the latter had furnished, and which the plaintiff had credited among the payments admitted in the complaint. Eor the whole contest after its exclusion, both in the court below and here, was upon the other items and the questions arising thereon, when, if this evidence was properly excluded, with the burden of proof on the plaintiff to establish those items, that was an end of the case. But we think this effect was not produced, for the reason that they were not sufficiently denied by the answer.

The only other question was as to the admissibility of the deposition. It was objected to, for the reason that it did not show any legal reason for taking it, the certificate stating only that the witness was going out of the state, but not that he would not return in time for the trial. We are inclined to think that under the strict rules prevailing as to the tak ing of depositions, tbis objection was correct. But we are still obliged to affirm tbe judgment, for tbe reason that if it bad been excluded tbe verdict could not have been different upon tbe testimony. No material fact was testified to in it, wbicb was not established by other evidence upon wbicb there was no conflict. It was suggested that tbe value of tbe wife’s services was not otherwise shown. But tbe plaintiff himself testified that it was $16; tbe complaint alleged an indebtedness of $16 for her services, and tbe answer only avoids these allegations by averring payment, but not by denial.

Tbe judgment must be affirmed with costs.