Stone v. Quaal

Gilfillan, C. J.

The court below erred in holding the denial- in the answer to be a negative pregnant, and therefore an admission of the allegations in the complaint. The statute provides that the answer shall- contain “a denial of each allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.” Under this, what is termed the “general denial” has from the beginning been practised and been sanctioned by this court. As usually expressed, this denial is of “each and every allegation” of the whole, or of some clearly-indicated portion, of the pleading to which the denial is in answer, or of the whole or part of such pleading with clearly and definitely expressed exceptions. However expressed, it is sufficient if it clearly shows that the pleader intends to deny “each and every” of the allegations in the whole or of the part of the opposite pleading referred to; This form of denying, instead of specific denials, was adopted from motives of convenience, and it has considerations of convenience to commend it. In effect, it is precisely the same as if each of the allegations so denied were specifically and separately referred to and denied. It is of no greater and no less effect. Is no better and no worse denial than such specific and separate denial would be. It *48 puts in issue each allegation of fact to which it relates as fully as. though each of such allegations were specifically denied. Thus, nr this complaint, it is alleged that “on or about the first day of November, 1883, the defendant, at the town of Hantho, in said county, unlawfully took from the possession of the plaintiffs,” etc.. There are several facts alleged, — the taking, and the time and place.,. Each is denied, and each, when denied, must, if material to the cause, of action, be proved. The court below appears to have considered the denial as though it put in issue only the conjunction of these-several facts. If that were so, of course the denial would be bad,, unless such conjunction were essential to the cause of action. But, that is not the purport of the denial of “each and every allegation,”' which refers to each of the facts alleged, and not to the manner or con-. nection in which they may be stated. A general denial is therefore a, negative pregnant only when a mere specific denial would be.

On the evidence, plaintiffs did not show any cause of action, not only because defendant, having innocently come by the wheat, was entitled to a demand, and none was proved, but because the evidence shows that he had a right to take the wheat that he took. It appears, that the wheat covered by plaintiffs’ mortgage — about 80 or 90 bushels —was mixed in the same bin with 120 bushels of other wheat. It does not appear that there was any difference in the kind, quality, or value of the wheat so mixed; nor does it appear how it came to be mixed. Out of the mass of over 200 bushels the defendant, with the consent of Nelson, the owner, took 51 bushels. As there does not, appear to have been any fraudulent intent in mixing the wheat, the rule stated in Story, Bailm. § 40, (and see case there cited,) as fol-. lows, applies: “If the goods are of the same nature and value, although . not capable of an actual separation by identifying each particular, yet, if a division can be made of equal value (as in the case of a mixt- . ure of corn or of coffee or tea or wine of the same kind and quality,) there each may claim his aliquot part.” No wrong could be done to . plaintiffs by Nelson, or any one by his permission, taking wheat out of the bin so long as there remained as much as was covered by their - mortgage.

Judgments of the district court and of the justice reversed.