Opinion
04-01-1851
KENDALL v. VALLEJO.
——, for Plaintiff. Mr. Lee and Horace Hawes, for Defendant.
APPEAL from the District Court of the Seventh Judicial District. The facts are stated in the subjoined opinion. ——, for Plaintiff. Mr. Lee and Horace Hawes, for Defendant.
By the Court, BENNETT, J. The complaint is founded upon a special contract, by which the plaintiff agreed to build a corral for the defendant for the sum of twenty-four hundred dollars, and it alleges that the work was completed within the time, and of the dimensions, required by the contract. The answer denies the making of the contract, and also that the "plaintiff built and completed a corral for the defendant in manner and form as the plaintiff has above thereof complained."
At the trial the defendant offered to prove "that the corral mentioned and described in the complaint was not built in a workmanlike manner, and that it would not answer the purpose for which it was intended." This offer was overruled by the Court, and the proposition thus presented forms the only point in the case
Under the new system of practice adopted in this State, the plaintiff is required to set forth in his complaint a statement of the facts constituting his cause of action (Practice Act, Sec. 38), and the defendant, in his answer, a general or specific denial of each allegation of the complaint controverted by him, and a statement of any new matter constituting a defence. (Id. Sec. 45.)
We think that the defect, if any existed, in the construction of the corral, was new matter within the meaning of this clause of the statute, which should have been specially set up in the answer. The object aimed at by our system of pleading is to apprise the opposite party of the nature of the action, and of the grounds of defence, which the parties respectively intend to rely upon at the trial. This purpose will bo more surely attained by requiring such a defence as the one under consideration, to be specially alleged in the answer. Under the old plea of the general issue in an action of assumpsit, the defence, that work for which the plaintiff sought to recover, was performed in an unskillful manner, has been in some cases held to be admissible (10 Barr, 43); while, in others, it has been required to be specially noticed. (The Mayor, &c. of Albany v. Trowbidge, 5 Hill, 71; Barber v. Rose, Id. 76.) We think the doctrine of the latter cases more consistent with our system of pleading, than that of the case cited from Barrs Reports, and shall, accordingly, adopt it. It follows that the ruling of the District Judge in excluding evidence to prove that the corral was not built in a workmanlike manner, was correct.
The exception, so far as regards the other portion of the Judges decision must also be overruled. There was a contract between the parties, by which the plaintiff bound himself to construct a corral of certain specified dimensions; and at the trial, the defendant offers to prove that the corral built by the plaintiff would not answer the purpose for which it was intended. This was not the point properly in issue. The question was whether the corral was built according to the terms of the contract. If it was, the plaintiff was entitled to recover, whether it answered the purpose for which it was intended or not. The judgment should be affirmed.
Ordered accordingly.