No violation of the policy by the drawing of petroleum after daylight was pleaded in the answer. Defendant made no application to amend; and, as the defence was not pleaded nor made available by amendment, or a motion to amend, the question was not in the case, whether such a defence existed or not. Hunt v. Hudson River Ins. Co., 2 Duer, 481; Dimon v. Dunn, 15 N.Y. 498; Coda v. Rathbone, 19 N.Y. 37; Wright v. Delafield, 25 N.Y. 266. III. The court, having properly charged the jury, was not bound in addition to use the specific language which defendant's counsel had inserted in his requests.
These matters constituting discrimination and illegality should have been pleaded and such defense cannot now be raised under the issues as framed. The general denial in the answer in an action on a contract puts in issue simply all matters which the plaintiff was bound to prove to make out his cause of action; in order to avail himself of facts not appearing upon the face of the contract to establish its invalidity or illegality the defendant must plead them. ( Milbank v. Jones, 127 N.Y. 370; Codd v. Rathbone, 19 N.Y. 37, Morford v. Davis, 28 N.Y. 481; School District of Kansas City v. Sheidley, 138 Mo. 672.) But passing from the question of pleading to the merits we have a contract which the parties have assumed to be a Pennsylvania contract.
Held to be separate trespass. Wheeler v. Wallace, (Mich) 19 N.Y. 37, was a case which involved two separate, distinct sales, on several different, distinct executions; thus was it distinguished from the case at bar. The only remaining case cited by counsel for defendant in error, and we think the strongest case cited by them, is the case of the Mo. Pac. Ry. Co. v. Scannon, 41 Kans. 521. This case has this distinguishing feature in it which we think removes it from the general rule.
We observe that the respondent on this appeal, seeks to invoke the aid of the following provision of the agreement in evidence in support of the judgment appealed from, viz.: "They (plaintiffs) will not ask, demand, sue for or recover for the entire work any extra compensation beyond the amount payable for the several classes of work in this contract enumerated, which shall be actually performed at the prices therefor herein agreed upon and fixed." While we do not perceive the relevancy of this provision to the question in controversy, any point sought to be made thereby is sufficiently disposed of by the fact that the provision was not among the defenses interposed to the complaint, or raised on the trial, and cannot be raised for the first time on appeal ( Codd v. Rathbone, 19 N.Y. 37; New York Central, etc., R. Co. v. City of Rochester, 127 id. 591; Cohn v. Goldman, 76 id. 284; Mead v. Shea, 92 id. 122); nor was the effect of this provision urged as a ground of the several motions to the denial of which exception was taken. Cruikshank v. Gordon, 118 N.Y. 178, 186; Langley v. Wadsworth, 99 id. 61; Schille v. Brokhahns, 80 id. 614.