COURT OF APPEAL.

New Zealand Times, Volume XXXIII, Issue 5517, 2 December 1878, Page 3

COURT OF APPEAL.

Thursday, November 28. (Before Chief Justice Prendergast, Mr. Justice Johnston, and Mr. Justice Gillies.) BREEN V. CELL. Appeal from a decision of the Supreme Court, Wellington District, on demurrer to defendant’s pleas. The declaration set forth (1) —That on the 22ud December, 1877, there was an agreement between plaintiff and defendant by which plaintiff agreed to build for defendant three cottages for £450 ; that the said agreement is in the possession of defendant; that the plaintiff duly executed the work ; that the £450 became due ; that all things happened and all times elapsed, &c,, to entitle plaintiff to tho £450, and that the defendant had not paid the money. (2) And the plaintiff farther said that the defendant was indebted to plaintiff for work and labor done and materials provided by the plaintiff for tbe defendant at his request. Wherefore the plaintiff claimed £450 on the first count and £4Bl under the second. The defendant pleaded a general denial, and after prefixing the words “ and the defendant further says” set out an agreement purporting to be that between plaintiff and defendant, by which plaintiff agreed to do the work for £375, and defendant agreed to pay a bonus of £/5 on the certificate of Mr, E. Gell (defendant’s son), architect, that the houses “have been completed in a satisfactory manner.” That the work was not carried out within the time specified, by reason whereof plaintiff became indebted in, and liable to pay, to the defendant 10s. per day after 30th April, 18“8. And the defendant further said that £299 had been paid on account. And the defendant farther said that plaintiff had not produced and delivered to defendant a certificate from E. Gell entitling him to the £375 referred to iu the agreement. And the defendant further said that the plaintiff had never produced and delivered to defendant a certificate from E. Gell entitling him to tho bonus of £75 referred to in the agreement. Defendant treated the pleadings as five distinct and separate pleas, joined issue on the general denial, and to the others demurred. As to the second plea—-1. That it does not appear by the said plea that the amount in which tho plaintiff is alleged to have become indebted to the defendant by reason of the non-completion of the contract in the said second plea mentioned within the time specified exceeded or was equal to the amount claimed in the declaration ; 2. That it does not appear that the plaintiff became indebted to tbe defendant iu any specified sum of money by reason of such non-completion within the term specified. As to tbe third plea—l. That the said plea, which professes to answer the whole claim of the plaintiff only alleges matter of defence as to part thereof; 2. That payment of a smaller sum than the amount claimed by the plaintiff did not operate as a satisfaction and extinguishment of the amount so claimed. As to the fourth plea—l. That the said plea, while professing to answer the whole claim of the plaintiff, only alleges matters of defence as to part thereof; 2. That it was not a condition precedent to the right of the plaintiff to receive payment of the sums of money claimed by him in the action that he should produce and deliver to the defendant a certificate as in the said fourth plea mentioned ; 3. That there is no allegation iu the defendants said plea of any contract or obligation on the plaintiff to produce and deliver any such certificate. As to the fifth plea—l, That the said plea, while professing to answer the whole claim of plaintiff, only alleges matter of defence as to part thereof ; 2. That it was not a condition precedent to the right of the plaintiff to receive payment of the sums of money claimed by him iu this action that he should produce and deliver to the defendant a certificate as in the said fifth plea mentioned ; 3. That there is no allegation in the defendant’s said plea of any contract or obligation on the part of the plaintiff to produce and deliver any such certificate, Eor appellant Breen, Mr. Ollivier (with him Mr. Fitz Gerald); for respondent, Mr. Brandon (with him Mr. Brandon, jun.) Mr. Ollivier ; The Court will see there are five pleas. Mr. Justice Johnston: So the plaintiff says. o Mr. Ollivier : So Mr. Justice Richmond decides in his judgment. Mr, Justice Johnston : It seems to me there are at moat two pleas. Firstly, the general traverse ; and then there are a series of facts set out for a second plea, but without the proper perfatory words. Mr. Ollivier :, The general denial is not limited, and therefore, according to a well recognised principle of pleading, must be taken as a plea to the whole declaration. Mr. Justice Gillies : If there are two causes of action in the same declaration ? Mr. Ollivier : Yes. To determine whether what follows is a series of pleas there must be an examination of what is to be found there, and an analysis of the weight of the statements which are rolled up into that series of allegations. What I submit is this, that tho pleader has chosen his own mode of dividing his pleas. He has looked at the declaration, and has seen that tho two counts are divided by those words, “and the plaintiff further says.” Recognising that as dividing the two counts ho has adopted tho same words for dividing his pleas, and after pleading a general denial, goes on to say, “and the defendant further says.” Clearly ho intended that for a second plea. This second plea is peculiar in that it pleads a set off of an indefinite amonnt against a definite amount. Tho plea must be construed strictly as against the pleader, and if that were done it would merely plead a set off of 10s. Tho Chief Justice ; You admit it is good as to 10s. Mr. Ollivier : No, because although a pica is to be construed as against a pleader, still ho himself cannot take any benefit under the rule. No doubt penalties may bo set up as a set off; Fletcher v. Dyche, 2 Term. Rep. 32; but a similar plea to tho second plea in this case was held bad by Mr, Justice Johnston in James v, Blaker, an unreported case, decided iu 1871. In regard [to what we call tho third plea, it pleads payments at various times in sums amounting to £299. No doubt wo could have entered judgment for the balance if this had stood alone, but we are mot by tho general denial in the first pjea, Tho fourth plea pleads a condition pre-cedent-disputes the right of tho plaintiff to bo paid a farthing, to bo paid anything whatever under his contract. The plea insists upon tho necessity for a certificate in special form, but under the contract it may be general. The plaintiff can claim on a general certificate. Pashby v. Mayor of Birmingham, 18 C.B. N. pp. 13_ and 32. It is not necessary that a certificate should bo in writing—it may bo verbal. Roberts v. Watkins, 14 O. H.s, 592, boars somewhat on tho point. At any rate, in a case of this sort tho Court ought not to bo subtle in raising objections and strict definitions as against tho plaintiff. In any case, tho pica was no answer to tho claim on the second count,

quantum meruit. The fifth plea is open to the same series of objections, except as to tho special form of the certificate- The pleas are full of internal evidence that they were intended as separate pleas. _ Considered separately the pleas are bad, but if considered as two there is a general denial, and for a second a mixture of the strangest possible kind. If an essential part of a plea is bad the whole is bad, and I contend that this second plea (assuming there are only two) is bad, because it contains a set off of an uncertain amount. The whole of the second plea in its various parts does not set up a defence to more than £7OO odd out of £9OO odd. All bnt the general denial is bad. Mr. EitzGerald : In his judgment Mr Justice Richmond thought he could not take notice of the fact of the contract set out in tho plea not being identified with that mentioned in the declaration. I refer the Court to rules 208, 209, and 214, and contend, on the authority of Cornish v. Bank of New South Wales, Mac. Rep. 181, that tho Court will take notice of points not taken on demurrer. It is only necessary to demur on some substantial ground. Le Brett v. Papillon, 4 East, 502. In Clapham v. Atkinson, 4 B. and S. 731, counsel was allowed to call attention to defects, as amicus curia:. Mr. Brandon: The pleading is perfectly regular, and if my friend has been embarrassed it is in consequence of his own mispleading, having joined the count on special contract with an indebitatus count. On the authority of rule 40, if we have fairly stated tho facts that is sufficient. To divide the plea into so many pleas is simply nonsense. There are two pleas. The two counts compelled us to set out the agreement which we rely upon, or else we could not have got it in evidence. If the Court will look at the agreement in the declaration and that in the plea, it will be seen there could not be a question as to their identity. Under rule 82 we are bound to set out tho contract. The Chief Justice : It was done in the case of the Crown v. Brogden, but there was agreement to allow it to be done. Mr. Brandon : It we wished the benefit of the payments we were bound to set them out. We do not say it was in full satisfaction, but merely that we had paid so much. Under the contract certainly a certificate was required before any money could be paid, and if a certificate was required it must be what a certificate is, a document in writing. He did not produce or deliver such a certificate. Mr. Justice Gillies ; Assuming that there are only two pleas, can you show me where the second plea is an answer to the second count for work and labor done ? Mr. Brandon : It is done in the first plea. Mr. Justice Gillies : But each plea must stand by itself. Mr. Brandon : The points of law in the tie’ murrer do not touch that. Mr. Ollivier, iu reply: No matter whether the pleas following the negative pleas are to be taken together or separately they are equally bad. The Chief Justice : It seems to me it is all one plea. Mr. Ollivier : The reductio ad alsurdum is that under the cover of a general denial any quantity of bad pleading may be got in. That would be an anomaly even in New Zealand. The principles of pleadings have never contemplated such a thing. The Chief Justice : No doubt, , Mr. Ollivier : Our rules 42 aud-43 show distinctly what is contemplated. I contend that defendant’s pleas do not cover any specific part of plaintiff’s claim, and absolutely do not cover the whole of it. The Chief Justice : In this case I have no doubt the draftsman intended to plead first a general denial. Secondly, ha intended to plead that as to a certain pertion of the amount claimed in the first and second counts the work was not done ; and as to the other part, that he had an answer to that amount in respect of the penalties. He intended also to say that there was a payment of £299, and as to £378 he intended to rely upon the special contract, that it was a condition precedent with regard to it ; and he also intended to say with regard to the £75 that it was to be paid on the completion of the contract for which plaintiff had no certificate. But he has not done so. He has not complied with the rules of pleading for the puiposes he intended, and if they are to be taken as separate pleas they are bad. But I think however wrong and informal it may be that it is all one plea—a general denial mixed up with a great deal of other affirmative matter—yet, nevertheless, if it is but one plea, and not a pleading of separate defences. I think it must be held to be good, because tho plaintiff has not taken the only course open to him and attacked it in consequence of its being embarrassing and having included in a negative plea matter which is affirmative. As it stands it is one plea, and inasmuch as there is a general denial it is impossible to say the plea is bad in substance. Mr. Justice Johnston ; I am sorry to say I cannot arrive at the same conclusion as the learned Chief Justice, viz,, that this must be taken as one plea, because I think it is clear that if a plea commences with an answer by traverse, —a general denial, —and then goes on to set up an affirmative defence, it confesses that which in tho former part was denied. I appreciate the reasoning of the Chief Justice upon the subject, that according to the lax idea prevailing as to pleading in New Zealand, as long as a plea contains something that is a good and sufficient answer, it is a good plea; and I myself have held upon some occasions that a pleading is good upon the whole if it contains in it sufficient matter to answer a previous pleading, but not in a case where different portions of the pleading are inconsistent with each other. I think the latter portions of this pleading must bo taken as one whole plea, and that that plea is bad in law. I do not think it is all one plea. Perhaps to say the least there are two pleas, it may be there are four. If it were intended* to be four pleas the pleading is deficient iu this respect, that the attention of the opposite party and the Court is not sufficiently specifically directed to the portions of the claim of the plaintiff to which they are respectively pleaded, and thereby something more than embarrassment is created. If there were only embarrassment, it would have been competent for the parties to have remedied that by application in chambers ; but I understand the defence put before us is first a plea of denial, putting plaintiff upon his proof, and then there is a series of allegations of matters affirmed by defendant, and to be proved by him, which would form an answer to plaintiff’s claim if he makes it out on the general denial. Now, the question which seems necessary to be determined is whether the case ought to bo presented in that way—whether wo can say that these allegations, taken together, do sufficiently cover the claim. I confess I have come to the conclusion that in some respects, at all events, there is a deficiency of precision which will not allow us to say that the whole claim is covered. The idea of the defence is to say “ As to so much we have made payment, as to so much we have a set-off arising from the agreement itself, and as to all tho rest we had not that certificate which the agreement we set out entitles us to have.” Now I am not sure that if that portion had been complete, if the agreement mentioned in the plea bad been identified with the agreement mentioned in the declaration, that plea might not have been a good plea by itself. At any rate it would have stood open to question whether any money was to be paid otherwise than upon tho production of a certificate. But tho question would then arise, oven if the plea was sufficient by itself, whether other portions of the defence were insufficient in point of precision, and it will stand thus then :—"Although you are entitled to defend the issues in respect of tho whole claim, on account of tho certificate not having been given in pursuance of tho contract, yet wo have paid you a large sum on account, and wo have against you a considerable set-off.” Bnt inasmuch as I am satisfied the certificate is not sufficiently pleaded as a general answer to tho whole, we must look at tho other portions of the plea, and I do not see how I can arrive at tho conclusion there has been shown with sufficient precision and clearness that the sum paid plus the sum recoverable in respect of the set-off is equivalent to tho whole claim made in tho declaration. There is no doubt tho statement with respect to set-off is made with too great laxity. In pleading a set-off you must state with sufficient clearness all that is material with respect to tho amount, to show that the set-off equals or exceeds the sum in respect to which it is pleaded, and that deducting tho portion of the claim disposed of by the plea of payment, we can distinctly to what portion of tho claim it is pleaded. Now, wo have no facts stated to show what penalties have accrued ; it is not stated when house 1, house 2, and house 3 were actually finished, and therefore no means are afforded for calculating what is tho amount of the whole penalties due. For these reasons I have come to the conclusion that whichever way you view these series of allegations they do not altogether amount to a good defence. Mr. Justice Gillies ; In tho main I agree with the opinions expressed by my brother

Johnston. Whatever the pleader may have intended by this plea, or whether he had any clear intention manifest to himself, I cannot tell. We have simply got to do with what the plea sets forth, and in considering a plea we must construe it most strongly as against the pleader. Now it appears to me that the view put forward, that there is one plea only, is untenable, upon the ground that it would amount to two contradictory statements being involvedjin the one plea—one a denial of the facts set forth in the declaration, and other an admission of the facts set forth in the declaration. If it is but ene plea it is entirely contradictory to itself, and thus becomes selfdestructive. But talcing it in the view most favorable for the defendant, viz., that there are two pleas, one a general denial, and the other a series of paragraphs consisting of different affirmations, —■! think the second plea is bad upon two main grounds : first, that the agreement set forth in the plea is not alleged to be the same agreement upon which the plaintiff claims, therefore it is no answer ; and, secondly, the plea does not touch the second count of the declaration, the count for work and labor done. Had there been an allegation that the second count was for the same work and labor as is included in the first, then it might have been an answer ; but there is no such allegation, and there is nothing in the declaration to show that these are other than two separate and distinct causes. In each case we find there were three houses, but there is nothing in the plea to show that three houses were not built by contract, and another three were not built to order. Even the intention of the pleader is not manifest; evidently it has been overlooked by defendant. This is not merely an irregularity it makes the plea absolutely bad. If it had been irregular, the proper course would have been to set the matter right in chambers; but thepleas are substantiallyaud positively bad. Mr. Justice Johnston : I also intended to have alluded to the fact that there ought to have been a plea identifying the cause of action in the two counts. The Chief Justice : It is understood that it I had come to the conclusion there was more than one plea I should have no doubt joined in the conclusions of my learned brothers. Judgment of the Court below reversed, and demurrer upheld, with costs m Appeal Court.