Joyner v. P. L. Woodard & Co.

Stacy, C. J.

The action of the trial court in treating the plaintiff’s anticipatory allegation in regard to the release as surplusage, and ordering it stricken out, is supported by decisions elsewhere.

Hedlun v. Holy Terror Min. Co., 16 S. D., 261, 92 N. W., 31 ;

Trotter v. Mutual R. F. L. Assoc., 9 S. D., 596, 70 N. W., 843 , 62 Am. St. Rep., 887 ; 53 C. J., 1271. And under authority of Killian v. Hanna, 193 N. C., 17 , 131 S. E., 246 , the demurrer might have been overruled without more. McIntosh N. C. Practice and Procedure, 412. But as no harm can come from the judgment as entered, it would serve no useful purpose to disturb it.

Ordinarily, the defense of release or accord and satisfaction must be pleaded in bar, but it is the rule in some of the States to permit the matter to be set out in the complaint in anticipation of such defense for the purpose of affirmative attack.

Berry v. St. Louis, etc., R. Co., 223 Mo., 358 , 122 S. W., 1043 ; 53 C. J., 1271. It is obvious, however, that where a defense is anticipated, unless also successfully assailed in the complaint, the pleading nullifies itself, and may be availed of on demurrer.

St. Louis, etc., R. Co. v. United States, 267 U. S., 346 , 69 L. Ed., 649 ; 21 R. C. L., 481. To anticipate a defense without negativing it is fatal.

Chance v. Credit Co., 118 S. E. (Ga. App.), 465.

*317 While the allegations in the instant complaint are rather inartificially drawn, we cannot say that they are wholly insufficient or self-contradictory. We are required on demurrer to construe the complaint liberally, “with a view to substantial justice between the parties,” C. S., 535, and, contrary to the common-law rule, every reasonable intendment is to he made in favor of the pleader.

Dixon v. Green, 178 N. C., 205 , 100 S. E., 262 ;

S. v. Bank, 193 N. C., 524 , 137 S. E., 593 .

Affirmed.

OoNNOR, J., not sitting.