formed.
Wherefore the defendant demands judgment that the com-
plaint of the plaintiff be dismissed with costs.
A. B.,
Attorney for Defendant.
[Verification.]
No. 108.
Defense of Tender.
For a separate and distinct defense to the alleged cause of
action set forth in the complaint, this defendant alleges as fol-
lows, upon information and belief:
Ninth: That before the commencement of this action and
on the llth day of June, 1909, at the city of New York, this
defendant tendered to the plaintiff the sum of one thousand
two hundred ninety-nine and 44/100 dollars ($1,299.44), with
interest from February 4, 1909, to June 11, 1909, in payment
and full settlement of the obligation of the defendants to the
plaintiff under the agreement annexed to the complaint herein
marked Exhibit "A," but the plaintiff refused to receive the
same.
Tenth: That this defendant has ever since remained and
still is ready and willing to pay to the plaintiff said sum and
said interest in full payment and settlement of the obligation
of the defendants to the plaintiff on the account of the afore-
said agreement, but the plaintiff has hitherto refused to receive
the same.
Wherefore, this defendant demands judgment dismissing
the complaint of the plaintiff and for the costs and disburse-
ments of this action.
r A. B.,
Attorney for Defendant
196
SUITS AT LAW.
No. 109.
Defense of Res Adjudicata.
That on or about March 10, 1904, this plaintiff commenced
an action in the supreme court of the state of New York, for
the county of New York, against this defendant to recover
from him the sum of $7,200, the amount of his alleged liability
under the constitution and general laws of Minnesota as a
stockholder or beneficial owner of stock of the Minnesota
Thresher Manufacturing Company for the same indebtedness
of said company which is alleged in the complaint in this ac-
tion, and that the liability of the defendant asserted in the said
action is the same liability asserted by the plaintiff in this action,
except only that the said action was brought to recover from
the defendant the assessment of $18 per share assessed by an
order of the district court for the county of Washington, state
of Minnesota, dated December 22, 1902, and referred to and
more fully described in paragraphs "16" and "17" of the com-
plaint herein, against every person liable as a stockholder of
said Thresher Company, while the present action while based
upon the same alleged liability of the defendant as a stock-
holder or beneficial owner of stock of the said Thresher Com-
pany, and upon the same proceedings of the courts of Minne-
sota referred to in the first twenty paragraphs of the complaint
herein, is brought to recover an assessment of $32 per share
assessed against every person liable as a stockholder of the said
Thresher Company by an order of the said court dated June 11,
1907, and referred to and more fully described in paragraphs
"22" and "23" of the complaint herein. That the said action
was thereafter duly tried upon the merits and that a judgment
was on January 7, 1905, duly entered therein in favor of this
plaintiff and against this defendant. That this defendant duly
appealed from the said judgment to the appellate division of
the supreme court of the state of New York, which court re-
versed the said judgment and ordered a new trial of the said
PLEADINGS BY THE DEFENANT, ETC. 197
action, and a judgment of the supreme court of the state of
New York was thereupon duly entered reversing the said judg-
ment and ordering a new trial of the said action. That such
new trial was thereupon duly had upon the merits and pro-
posed findings of fact and conclusions of law were duly sub-
mitted thereon on behalf of both the plaintiff and defendant
and that a judgment was on August 29, 1906, duly entered
therein upon the merits in favor of this defendant and dismiss-
ing the complaint in said action. That the plaintiff thereafter
appealed to the appellate division of the supreme court of the
state of New York from said judgment, which court duly
affirmed the said judgment; that the plaintiff thereafter ap-
pealed to the court of appeals of the state of New York from
the judgment affirmed by the appellate division of the supreme
court of the state of New York in favor of this defendant and
that the said court of appeals duly affirmed the said judgment;
that the said plaintiff thereafter sued out a writ of error to the
supreme court of the United States from the judgment entered
upon the order of the said court of appeals affirming the said
judgment and that the supreme court of the United States
thereafter dismissed said writ of error, and a judgment of the
supreme court of the state of New York was thereafter and on
the 17th day of January, 1911, duly made and entered affirm-
ing the judgment appealed from. That in and by said judg-
ments and proceedings of the supreme court and court of ap-
peals of the state of New York, it was finally adjudged and
decreed upon the merits as appears from the judgment roll in
the said action that the defendant was not a stockholder of the
Minnesota Thresher Manufacturing Company at the time of
the entry of the judgments, orders or decrees of the district
court of Washington county, Minnesota, on August 16, 1901,
and December 22, 1902, respectively, described in the com-
plaint herein, and that the defendant was not, therefore, sub-
ject to any liability for the debts of that corporation under the
constitution or laws of Minnesota. That hereto attached
198 SUITS AT LAW.
marked "A" and made a part hereof is a true copy of the
minutes of the decision of the court of appeals in the said
action.
That the said judgments and proceedings other than the
judgment of January 7, 1906, are still in full force and un-
reversed and are res adjudicatae and conclusive upon the par-
ties to this action as to liability of this defendant asserted in
the complaint herein as a stockholder or as the beneficial owner
or holder of stock of the Minnesota Thresher Manufacturing
Company.
Upon information and belief that the cause of action alleged
in the complaint in this action is the same cause of action
alleged in the action referred to in paragraph twelfth of this
answer and that the judgment of August 29, 1906, in the said
action is res adjudicata as to the cause of action alleged in the
complaint in this action.
That under the provisions of Article 4, Section 1, of the
Constitution of the United States, full faith and credit must be
given by this court to the said judgments and judicial proceed-
ings of the supreme court of the state of New York and of the
court of appeals of that state.
No. 110.
Pleading Equitable Defense in Action at Law (1).
And for a fifth, further and affirmative defense, without
waiver of any of the defenses hereinbefore interposed, de-
fendant alleges:
That the plaintiff, on or about the 5th day of March, 1915,
for a good, valuable and sufficient consideration, compromised,
adjusted and made a full settlement of his claim, if any, against
defendant on account of the accident, if any occurred, of
which plaintiff complains in said complaint, and then and
there, for a good, valuable and sufficient consideration paid to
PLEADINGS BY THE DEFENANT, ETC. 199
him by defendant, made, executed and delivered to defendant
his written release, in full settlement and discharge of all claims,
demands or causes of action whatsoever which he then had
or might thereafter have against defendant on account of the
accident, if any occurred described in said complaint ; that
plaintiff thereby then and there released and forever dis-
charged defendant of all claims, demands and causes of action
whatsoever which plaintiff then had or which he might there-
after have against defendant on account of the accident, which
occurred to the plaintiff on October 28, 1914, as alleged in
said complaint ; that by virtue thereof plaintiff's right of action
against defendant, if any he had, and defendant's liability
for said accident, if any existed, were extinguished ; that said
written release, made, executed and delivered to defendant
by plaintiff on March 5, 1915, as aforesaid, was and is in
words and figures as follows, to-wit:
"Union Pacific Railroad Company. Voucher No. .
"Draft No. 714 EDW.
"Release of All Claims.
"Received of Union Pacific Railroad Company seven hun-
'dred fifty dollars ($750.00) in full settlement and complete
satisfaction of all claims and causes of action against it grow-
ing out of any matter whatsoever, and particularly in full
settlement and complete satisfaction of all claims or causes
of action, that exist or may hereafter accrue, against it or any
other company, partnership or person, for damages for any
and all personal injuries or loss or damage to property, sus-
tained in or growing out of a certain accident, or for com-
plications arising from such injuries, or treatment for such
injuries. Said accident occurred on the twenty-eighth (28th)
day of October, 1914, at or near Denver, Colorado, and con-
sisted in injuries received while employed as boilermaker
helper.
200 SUITS AT LAW.
"In consideration thereof, I release Union Pacific Railroad
Company from all claims or causes of action growing out of
any matter whatsoever, and I particularly release said com-
pany and all other companies, partnerships and persons from
all claims or causes of action, that exist or may hereafter
accrue, for damages for any and all personal injuries or loss
or damage to property, sustained in or growing out of the
said accident, or for complications arising from such injuries,
or treatment for such injuries.
"The above amount is the full consideration for this settle-
ment, and no promise or contract of future employment has
been made.
"I have read the foregoing receipt and release and fully
understand the same.
"Dated, Denver, Colo., March 5, 1915.
"Witnesses :
"Mrs. Katie Hoffman,
"C. R. Lucas.
"(Signed) JAMES SYAS."
(1) The Judicial Code, Sec. 274b, provides for such defense. 35
Stat. L 956.
There was no such right prior to this statute. Whitcomb v.
Shultz, 223 Fed. 268, 138 C- T. A. 510, and see note to Standard, etc.,
Co. v. Evans, 125 C. C. A. L
This statute abolishes the technical distinctions between actions
at law and in equity. U. S. v. Richardson, 223 Fed. 1010, 139 C. C.
A. 386.
Answer in a suit in assumpsit for price of an adding machine
may set up fraudulent representations of the plaintiff. Burroughs,
etc.; Co. v. Bank, 239 Fed. 1/9.
In a suit against the executors of a will to recover a legacy the
executors may set up a release as a legal defense, but plaintiff may
not set up an equitable defense thereto in the replication, for Judicial
Code, Sec. 274b, although permitting an equitable defense in the
answer or plea, permits such defense in the replication only when the
answer or plea interposes an equitable defense upon which affirma-
tive relief is prayed, as a counterclaim, but Hand, district judge,
regarded that construction too narrow and dissented. Keatley v.
U. S. Tr. Co., 249 Fed. 296, 161 C. C. A. 304.
PLEADINGS BY DEFENDANT, ETC. 201
When equitable relief is asked in an action at law, the case for
equitable relief should be tried as a case in equity and first disposed
of before proceeding in the action at law; it is error to send to the
same jury the question of fraud in a release pleaded as an equitable
defense and the question of damages if the release is found by the
jury to be fraudulent. U. P. Ry. Co. v. Syas, 246 Fed. 561, 158 C. C.
A. 531; Fay v. Hill, 249 Fed. 415.
This section applies only between the original parties to the suit,
and is therefore not a bar to an ancillary action in the nature of an.
interpleader brought by the same defendant where other parties are
necessary to the determination of the interpleader. Sherman, etc..
Bank v. Shubert Theatrical Co., 247 Fed. 256, 159 C. C. A. 350.
This section covers also a case in which the defense calls for
affirmative relief as well as for a judgment that the plaintiff "take
nothing." United Timber Corp. v. Bivens, 248 Fed. 554, 562.
Under this section it is proper in an action on a contract to ask
in the answer for reformation thereof, and the court will consider this
cross-petition first as an equity proceeding, and after decree thereon,
take up the trial of the action at law for breach. Upson Nut Co. v.
American Shipbuilding Co., 251 Fed. 707.
No. 111.
Plea of General Issue with Notice of Set-Off.
[Caption.]
The defendant comes and demands a trial of the matters set
forth in the plaintiff's declaration. R. Y.,
Attorney for Defendant.
To G. P.,
Attorney for the Plaintiff:
Please take notice that the defendant will in like manner
insist upon and give in evidence under the general issue above
pleaded that before and at the time of the commencement of
this suit, the plaintiff was and still is indebted to the defend-
ant in the sum of twenty-five thousand dollars, for the price
and value of goods then sold and delivered by the defendant
to the plaintiff at its request. And in like sum for the price
and value of work then done, and materials for the same pro-
vided, by the defendant for the plaintiff, at its request. And
in like sum for the price and value of work then done by
the defendant for the plaintiff, at its request. And in a like
202 SUITS AT LAW.
SUM for money then lent by the defendant, to the plaintiff,
at its request. And in a like sum for money then paid by the
defendant for the use of the plaintiff, at its request. And in a
like sum for money then received by the plaintiff for the use
of the defendant. And in a like sum for money found to be
due from the plaintiff to the defendant on an account stated
between them. Which said several sums of money, or so
much thereof as will be sufficient for that purpose, the defend-
ant will set off and allow against any demand of the plaintiff
to be proved on said trial, and will take judgment against the
plaintiff for the amount of the balance, if any, found upon
such trial, to be due from the plaintiff to the defendant.
R. Y.,
Attorney for Defendant.
Dated this day of , A. D. .
No. 112.
Pleas to a Declaration by an Engineer for Damages for Per-
sonal Injury.
[Caption.]
First. The defendant for plea to the declaration and the
four counts of the same says it is not and was not guilty of
the wrongs and injuries as plaintiff both alleged.
R. Y.,
Attorney for Defendant.
Second. And for further plea to the first count of the dec-
laration says, if the injury resulted from the negligence of
the conductor, as plaintiff has alleged, then the defendant is
not liable, as the said conductor and engineer were fellow
servants. R. Y., Attorney.
Third. And the defendant for further plea to the second
count of the declaration says, if the injury resulted from the
negligence of the telegraph operator at Jackson and Milan,
PLEADINGS BY DEFENDANT, ETC. 203
or either, as plaintiff has alleged, it is not responsible as it
would be the act of a fellow servant of the deceased.
R. Y., Attorney.
Fourth. And for further plea to the third count of the
declaration that the injury resulted from the negligence of
the operator or agent or some one for him at Milan, it states
it is not liable because it would be the negligence of a fellow
servant of the deceased. R. Y., Attorney.
Fifth. And further plea to said third -count that the ac-
cident resulted from the negligence of some one at Milan, it is
not responsible for the acts of said third party.
R. Y., Attorney.
Sixth. And for further plea to each count of the declara-
tion it says if the accident occurred it was the fault of a
fellow servant of said engineer, for which it is not responsi-
ble. R. Y., Attorney.
Seventh. And for further plea to each count of the decla-
ration it says if the accident occurred it was by the negli-
gence of the deceased for which the defendant is not liable.
R. Y., Attorney.
Eighth. And defendant for further plea to each and every
count of the declaration says the accident or injury was the
result of the deceased's disobedience of the rules and regula-
tions of the defendant. R. Y., Attorney.
Ninth. And for further plea to each count of the declara-
tion it says it is not liable ; that the deceased at the time of the
accident was acting in direct violation of the rules of the de-
fendant which he knew of. R. Y., Attorney.
Tenth. And for further plea says the accident was the re-
sult of deceased disobeying the rules of defendant.
R. Y., Attorney.
SUITS AT LAW.
No. 113.
Plea of Statute of Limitations.
[Caption.']
And for further plea in this behalf said defendant says,
plaintiff's cause of action, if any he had, accrued more than
twelve months next before the commencement of this suit
and this defendant is ready to verify. R. Y.,
Attorney for Defendant.
No. 114.
Pleas to a Declaration on Policy for Accident Insurance.
[CaptionJ]
First. The defendant, the Fidelity and Casualty Com-
pany of New York, for plea says that it owes the plaintiff
nothing as in his declaration he hath alleged.
Second. The defendant craves oyer of the policy of acci-
dent insurance in the declaration mentioned and it is read
to it in these words : [Here set out policy in haec verba.~]
Third. For further plea defendant says that the statement
made in said application for said policy of insurance that said
intestate was then in sound condition mentally and physically
was false and untrue in that the said intestate had a few
months theretofore received a severe blow on the head which
caused his brain to become and be diseased, and in conse-
quence thereof he was not in sound condition physically,
and at the time of the making of said statement. Said in-
testate was not in a sound mental condition and by reason
of the falsity of said statement and the breach of said war-
ranty, the policy of accident insurance mentioned in the dec-
laration was avoided from the beginning.
Fourth. Defendant for further plea says that plaintiff's
intestate committed suicide by, on , voluntarily, wan-
tonly and with the intent to take his life, jumping from a train
en route from to , moving at a high rate of speed,
PLEADINGS BY DEFENDANT, ETC. 205
he being a passenger on said train; that said intestate inten-
tionally and of a purpose, fell, sprang or jumped from said
train with the intent of inflicting injury upon himself and
as a result thereof he was thrown against the ground on or
near said railway track with great violence receiving in-
juries from which he died four days later.
Y. & Y.,
Attorneys for Defendant.
No. 115.
Plea that Suit Has Abated by Death of only Beneficiary.
[Caption.]
Now comes the defendant, the C. & D Railroad Company
and for plea to the said declaration filed herein says :
That the deceased, E. F., died unmarried, without chil-
dren, and leaving surviving him as his next of kin his fa<.
ther, G. F., who alone was entitled to recover any damages
for the wrongful death of said E. F.
Since the bringing of this suit, said father, G. F., has
died ; thereupon defendant comes and says that this suit abated
upon the death of the father, G. F., and can no longer be
maintained.
And this it is ready to verify.
R. Y. and G. Y. come and make oath that they are attor-
neys Tor the C. & D. Railroad Company and do say upon
oath that the matters and things stated in the foregoing plea
are true in substance and in fact. This plea is not interposed
for delay. R. Y.
G. Y.
Sworn to and subscribed before me this day of ,
H. M., Clerk.
206 SUITS AT LAW.
No. 116.
Answer to Suit on Fidelity Bond.
[Caption.]
Comes the defendant in the above styled cause, and for
answer to each count of the complaint filed in said cause,
separately, says :
1. It pleads in short by consent the general issue.
2. It denies every material allegation of said count.
3. It says that it is not indebted to the plaintiff.
4. Defendant alleges that the bond sued on provides that
the defendant should not be liable under said bond for any
act or thing done or left undone by the principal, E. A.
Matthews, in obedience to, or in pursuance of any instruction
or authorization received by him from the assured, the Clanton
Bank, or any superior officer, and defendant alleges that the
act or thing done or left undone by the said E. A. Matthews,
and for which recovery is sought in this suit, was done or
left undone by the said E. A. Matthews in obedience to or in
pursuance of instruction or authorization received by him from
the Clanton Bank or from one of the superior officers of the
said E. A. Matthews.
5. Defendant says that the bond sued on provides that the
defendant should not be liable for any mere error of judg-
ment or bona fide mistake or any injudicious exercise of dis-
cretion on the part of the said E. A. Matthews in and about
all or any matters wherein he shall have been vested with
discretion, either by instruction or by the rules and regulations
of the Clanton Bank; and defendant says that the acts of
the said E. A. Matthews, for which recovery is sought in
this suit, consisted of nothing more than errors of judgment
or bona fide mistakes or the injudicious exercise of discretion
on the part of the said E. A. Matthews in and about the mat-
ter of the bank, with which he was vested with discretion.
6. Defendant says that prior to the execution of the bond
sued on, the said E. A. Matthews had been, for a number of
years, in the employ of the Clanton Bank as its cashier, and
PLEADINGS BY DEFENDANT, ETC. 207
that during the time that he was so employed by the Clanton
Bank, prior to the date of the execution of the bond sued on,
the said E. A. Matthews was guilty of dishonest and fraudu-
lent acts, in pursuance of his duties as cashier, which dis-
honest or fraudulent acts amounted to larceny or embezzle-
ment and that the said Clanton Bank, at the time that the
bond sued on was executed by the defendant, had knowledge
of the commission of said acts by the said E. A. Matthews.
Defendant further alleges that when said bond was executed
by it, the said Clanton Bank concealed from and failed to dis-
close to the defendant the commission of said acts by the said
E. A. Matthews, and thereby perpetrated upon the defendant
a fraud in the procurement of the execution by the defendant
of the bond sued on. Wherefore, the defendant says that the
plaintiff should not recover on said bond.
7. Defendant says that prior to the execution of the bond
sued on, the said E. A. Matthews had been, for a number
of years, in the employ of the Clanton Bank as its cashier,
and that during the time that he was so employed by the
Clanton Bank, prior to the date of execution of the bond sued
on, he had on numerous occasions done some of the same
character of acts and used the funds of the Clanton Bank in
the same manner as that for which recovery is sought in this
suit; that the Clanton Bank had knowledge of these facts at
the time that the bond was executed by the defendant, but
concealed from and failed to disclose to the defendant said
facts, and defendant alleges that said Clanton Bank thereby
perpetrated upon it a fraud in the procurement of the execu-
tion of said bond, which precludes a recovery upon said bond.
8. Defendant alleges that the bond sued on in this case
was issued upon the express condition, which condition is
set out in the bond sued on, that on the discovery of any
act capable of giving rise to a claim under said bond, the
Clanton Bank should, at the earliest practicable moment, give
notice thereof to the defendant, and defendant alleges that
the Clanton Bank discovered an act or acts capable of giving
208 SUITS AT LAW.
rise to a claim under said bond, and failed to give notice
thereof to the defendant at the earliest practicable moment
after the discovery thereof.
9. Defendant alleges that the bond sued on in this case was
issued upon the express condition, which condition is set out
in the bond sued on, that on the discovery of any act capable
of giving rise to a claim under said bond, the 'Clanton Bank
Should, at the earliest practicable moment, give notice thereof
to the defendant, and defendant alleges that the Clanton Bank
discovered an act or acts capable of giving rise to a claim
under said bond, and failed to give notice thereof to the de-
fendant within a reasonable time after the discovery of said
act or acts.
10. Defendant alleges that the bond sued on in this case