Watriss v. Pierce

Bell, J.

The first replication is objected to, because, as it denies none of the facts alleged in the plea, it admits them, and offers an issue to the jury upon the legal effect of them. The sufficiency of the plea is a matter of law, to be determined by the court upon a demurrer. A replication which refers a mere question of law to the decision of the jury, is not to be sustained. Gould’s PL 358, 406; Arch. Civ. Pl. 202, 271; Com. Dig., Pleader, R, 10; Hale v. Dennie, 4 Pick. 503.

This replication is insufficient, if regarded as a denial of all the facts alleged in the plea. The replication must deny a single fact alleged in the plea alone, except in cases where two or more facts constitute a single point only, which would not he effectually answered by a denial of one of them. Tibbetts v. Tilton, 4 Poster (24 N. H.) 120, and cases there cited. The plea contains several allegations, the successful denial of which would defeat the plea: As, the replication might have denied the agreement of August 14, as stated; or, that the deed was delivered to Nott to be delivered to Watriss in execution of that agreement; or, that the deed was delivered upon any other agreement. These various matters cannot, consistently with the rules of pleading, he denied in mass. 1 Ch. Pl. 577; Gould’s Pl. 406, 420; Arch. Civ. Pl. 209 ; Com. Dig., Pleader, R, 4; White v. Stubbs, 2 Saund. 296.

The second replication denies one of the facts alleged in the plea alone: namely, that the deed was delivered to Nott, to be delivered to Watriss, upon the agreement between Nott and Watriss, of August 14, stated in the plea, or in execution of it.

This fact is essential to the charge of fraud. If it was not so, the charge fails. It is immaterial upon what agreement the deed was placed in Nott’s hands, if not on this. It is enough for the plaintiff to deny a material part of the defence, without ‘stating his own account of the transaction. Bradner v. Dimick, 20 Johns. 404 .

It is objected to the fourth and fifth replications, that they are *237 inconsistent with each other, and the other replications, and repugnant to them. This is not material. The statute (1847, ch. 503 ; Comp. Stat. 483, sec. 4,) authorizes the plaintiff “ to file as many separate replications as the nature of the case may require.” Such an objection was formerly allowed to several pleas ; Com. Dig., Pleader, E, 2; hut it is now held that each plea is to be considered as independent of the others, and to operate as if pleaded alone. Mere inconsistency is therefore no objection to their being pleaded together. Gould’s PI. 434; 1 Ch. PI. 540, 542; Arch. Civ. PL, 253 ; Saund. PI. & Ev. 724.

The facts asserted in these pleas are not material. That the agreement of August 14 was made, is admitted by the allegation that it was abandoned or changed. Though the defendants knew that it had been afterwards abandoned or changed, it was competent for them to place their obligation in the hands of Nott, to be delivered upon that agreement, if Watriss would take it. And if JSTott and Watriss, knowing this, fraudulently and covin-ously concluded a different bargain, less beneficial to the defendants, without consulting them, and delivered the obligation upon it, the defendants would not be bound. It would make no difference, that, when they authorized their obligation to be used to carry into effect one set of stipulations, which they approved, they were aware that the immediate parties had agreed to abandon or change them, and adopt others, to which they did not assent. To make the replication effectual, it was necessary to add a traverse of the fact that the deed was placed in Nott’s hands to carry out that contract. Such an addition would make these replications substantially the same as the second.

The sixth, seventh and eighth replications are open to the same objection. They deny nothing alleged in the plea, and, of course, admit the fraud charged. Cheever v. Mirick, 2 N. H. 376. This defence can be met and obviated in one way only. The plaintiff may show that the invalid instrument was after-wards ratified by the defendants. The facts stated in each of these replications have a tendency to show a ratification. Unless they constitute a ratification, they are merely immaterial; *238 the fraud alleged is none the less a fraud on this account; and the deed invalidated by it is none the less invalid. Neither of them in terms sets up a ratification. That is done distinctly, in another replication, upon whieh issue is joined. The facts stated in these replications, if offered as evidence of a ratification upon the issue joined on that fact, would be proper to be weighed and considered by the jury, in connection with any other evidence bearing upon that point. But they cannot be considered as even argumentatively equivalent to a plea of ratification, unless they necessarily and of themselves amount to a ratification. Corwin v. Corwin, 9 Barb. 219 . On examination they will be found to have no sueh effect. They may or they may not amount to a ratification, according to various circumstances, which are not alluded to in the replications. Shumway v. Stillman, 4 Cowen 292.

In all of the replications it is alleged that the defendants asked and received of Nott a release of his interest in the land mortgaged. In two of them, that they asked and received of the railroad company an indemnity against any loss arising from this deed. Neither of these things would be of itself a ratification. If so intended, or if so done that an intention to ratify the deed could be fairly inferred, it would be a ratification. But as to this point nothing appears, and nothing is to be inferred. It is always presumed that a pleader states his case in his own favor as strongly as it will bear. Gould’s Pl. III., 169; 1 Ch. Pl. 241, 521; Arch. Pl. 235 ; Broom’s Maxims 461. If these instruments were drawn, as they well might have been, so as to negative all idea of a ratification, they could not amount to a ratification.

In the two last replications it is alleged that the defendants, on being informed of all that had been done by Nott, did not object to the delivery of the deed by Nott to Watriss, upon the new contract. It is not said they assented or agreed to this delivery. Such an assent or agreement would be a ratification. They did not object. They did nothing. Silence, when a man ought to speak; doing nothing, when he could and ought to act, *239 may well justify the inference of consent. But such inference is not necessarily to be drawn from the mere fact of silence or inaction. These are to be considered, with all their accompanying circumstances. The defendants were informed of the facts only after the fraud had been consummated ; and as they were not bound, they might well wait and do nothing till they were called upon to pay. It is by no means clear what they should have done besides, or that they were bound, or had opportunity to do any thing. They had nothing in their hands which they were bound to restore; they had no control of the funds received by the corporation, or of the land conveyed to Nott.

In the same replications it is said the defendants, on being informed of what had been done by Nott, did not repudiate or disclaim the acts and doings of Nott, as the agent of the company, or the terms or conditions on which he purchased the land or borrowed the money ; nor object to his retaining the money and expending it for the use of the corporation.

These facts are not material. Nott is alleged and admitted to be the agent of the corporation, with power to bind them, as he assumed to do. The corporation was bound, and the defendants, as stockholders, or directors, or as individuals, had no right or power to disclaim or repudiate Nott’s acts in behalf of the corporation. No inference could be fairly drawn, much less would any inference necessarily result, from their silence or inaction, where they had no right to complain or to interfere.

The other facts alleged in these replications, showing fhe relation of Nott as agent, and of the defendant as stockholders and officers, to the railroad corporation, have no direct tendency to show a ratification of Nott’s acts in the delivery of this deed, though they may render that conclusion, from the other facts, more probable. The facts alleged in these replications do not of themselves constitute an answer to the plea of fraud, and they are consequently defective and insufficient.

The facts essential to a defence must in general be expressly and substantially alleged. The statement of mere evidence *240 tending to prove a material fact is not sufficient. Such a mode of pleading, if admitted, would refer the matter of fact in question to the court instead of the jury. Thus, if in trover the plaintiff allege a demand and refusal, but omits to aver a conversion, the declaration is ill, the demand and refusal being only evidence of a conversion, which is the gist of the action. Gould’s Pl., III., 166 ; Tirer v. Littleton, 10 Co. 56 ; Arch. Civ. Pl. 238 ; Ralston v. Strong, 1 Chip. 293 ; Palister v. Little, 6 Greenl. 350 ; Lyman v. Lull, 4 N. H. 495 ; Bullock v. Perry, 2 S. & P. 319 ; Hughes v. Wheeler, 8 Cowen 81; Calvin v. Burnett, 17 Wend. 564 ; Fidler v. Delavan, 20 Wend. 60 ; Church v. Gilman, 15 Wend. 656 ; Myers v. Bell, 5 Blackf. 249 ; Hoard v. Garner, 1 Saund. 614 ; Boyce v. Brown, 7 Barb. 80 ; Russell v. Clapp, 7 Barb. 482; Knowles v. Gee, 8 Barb. 300 ; Stone v. DePuga, 4 Saund. 684 ; Corwin v. Corwin, 9 Barb. 219 .