contract with a corporation is estopped from setting up in an action upon such contract that the corporation was not legally formed.384 § 3346. Want of capacity-denial of trusteeship. [TITLE.] Form No. 751. The defendant answers to the complaint: .. day of ..... ..... That since the expiration of said first year [or after the 18..], he has not been a trustee of said company, and has not in any way managed the affairs or concerns of said company as such. 384 Palmer v. Lawrence, 3 Sandf. 170; Steam Nav. Co. v. Weed, 17 Barb. 378; White v. Coventry, 29 id. 305; to same effect, White v. Ross, 15 Abb. Pr. 66; Hyatt v. Esmond, 37 Barb. 601; Hyatt v. Whipple, id. 595; Cooper v. Shaver, 41 id. 151; but compare Welland Canal Co. v. Hathaway, 8 Wend. 480; 24 Am. Dec. 51. Estoppel- how pleaded. An estoppel in pais is new matter, and can not be relied upon in evidence as a defense without being specially pleaded. Prewitt v. Lambert, 19 Col. 7; Gaynor v. Clements, 16 id. 209; De Votie v. McGerr, 15 id. 467; 22 Am. St. Rep. 426; Bruce v. Phoenix Ins. Co., 24 Oreg. 486. The party claiming an estoppel in pais, and relying upon it as a defense, should set out the matters constituting it in his answer. McKeen v. Naughton, 88 Cal. 462; Troyer v. Dyer, 102 Ind. 396. Such is the rule generally in those states which have adopted the reformed procedure. See Walker v. Baxter, 6 Wash. St. 244; Knudsen v. Omanson, 10 Utah, 124; Tyler v. Hall, 106 Mo. 313; 27 Am. St. Rep. 337, and note; National Bank v. Doran, 109 Mo. 40; Churchill v. Baumann, 95 Cal. 541; Warder v. Baldwin, 51 Wis. 450; Burlington, etc., Bank v. Merchants' Bank, 68 Iowa, 343. So, an estoppel by deed or record must be pleaded to be available either as a cause of action or as a defense. Bays v. Trulson, 25 Oreg. 109. But it is not true that in all cases to be available an estoppel must be strictly pleaded as such. If the facts constituting the estoppel are in any way sufficiently pleaded, the party is entitled to the benefit of the law arising therefrom. City Nat. Bank v. Thomas, 46 Neb. 861; and see Wachter v. Phoenix Assu. Co., 132 Penn. St. 428; 19 Am. St. Rep. 600; Miss v. Gill, 44 Ohio St. 253. And the sufficiency of the manner in which an estoppel is pleaded will not be reviewed on appeal, where the plea was treated at the trial as properly made and sufficient. Hughes v. Wheeler, 76 Cal. 230. In replevin, evidence of matter in estoppel may be given and availed of as a defense under a general denial and without being pleaded specially. So held by the Nebraska court. Towne v. Sparks, 23 Neb. 142. § 3347. Denial of subscription of stock. Form No. 752. That he never subscribed for any stock of the corporation mentioned in the complaint, and never became a stockholder in or the holder or owner of any stock of the said corporation, in his own right, or in trust for others. he sold and transferred all his stock and interest in the said company; and that he had not then, nor has he had since that time, nor has he now, any property or interest of any nature or kind whatsoever in the said company, as stockholder or trustee, or otherwise. § 3349. Individual answer. Stockholders of a corporation who have been allowed to put in answers in the name of the corporation can not be regarded as answering for the corporation itself. In a special case, however, a stockholder may be allowed to become party defendant, for the purpose of protecting his own interests, and the interest of such stockholders. as choose to join in with him in the defense.385 § 3350. Nonjoinder of parties. Stockholders of insolvent corporations, in Pennsylvania, when sued by creditors, may, under the plea of payment with leave, take advantage of nonjoinder of proper parties, and need not plead specially in abatement.386 § 3351. Want of capacity denial of official capacity. [TITLE.] Form No. 754. The defendant answers to the complaint, and denies that the plaintiff is [executor or administrator of the said deceased, or otherwise], as alleged, or at all. § 3352. Want of capacity - partnership of plaintiff. [TITLE.] Form No. 755. The defendant answers to the complaint, and alleges: I. That the cause of action set forth in the complaint did not accrue to the plaintiff individually, but to the plaintiff 885 Brown v. La Crosse R. R. Co., 2 Wall. 283; see § 138, ante886 Hoard v. Wilcox, 47 Penn. St. 51. Vol. II-83 and one R. S., under the firm name [giving name of firm], and that said partners, as such, when this action was brought, held and owned the said cause of action jointly. II. That the said R. S. is still living.387 3353. Want of capacity - partnership of the defendant. [TITLE.] The defendant answers to the complaint, and alleges: I. That the contract set forth in the complaint was not made by him individually, but by him and one R. S. jointly as partners, under the firm name [give the firm name]. II. That the said R. S. is still living. § 3354. Want of consideration common form. Form No. 757. [TITLE.] The defendant answers to the complaint: That he received no consideration for the [promissory note] mentioned therein [Mistake or any fact showing fraud should be alleged.] § 3355. How pleaded essential and sufficient allegations. In pleading failure of consideration, an issue of law must not be tendered.3 388 An answer of an entire or partial failure of consideration, which does not set out the facts showing the failure, or how much the whole consideration for the property was, and gives no data by which the court can determine what deduction, if any, should be made, is bad.389 An answer setting up in defense a failure to perform an agreement to execute an indemnifying bond is bad when it does not set forth an injury resulting from such failure, but shows that injury can never happen.390 All matters in confession and avoidance, showing that the contract sued upon was void or voidable in 387 A mere denial of the act is not a denial of the partnership. Anable v. Steam Engine Co., 16 Abb. Pr. 286. 388 Bennett v. Martin, 6 Mo. 460; and see Hammond v. Earle, 58 How. Pr. 426. 389 Billan v. Hecklebrath, 23 Ind. 71; Carmelich v. Mims, 88 Ala. 335; Nixon v. Beard, 111 Ind. 137; Moore v. Alston, 4 Tex. App. 478. As against a bona fide purchaser for value before maturity of negotiable paper, failure of consideration without notice constitutes no defense to the action. Rand v. Pantagraph Co., 1 Col. App. 270. 390 Billan v. Hecklebrath, 23 Ind. 71. point of law, must be affirmatively pleaded.391 It seems that illegality in a contract sued on, though shown by the testimony, can not avail the defendant, unless it is alleged in the pleadings; and that an allegation in the answer that the contract was illegal, coupled with an enumeration in the same paragraph of specific grounds of illegality, does not entitle the defendant to prove any grounds of illegality not so specified.392 A plea seeking to avoid the bond for being illegally taken should specially state all the facts which show that illegality.393 If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void.394 That is not lawful which is contrary to an express provision of law; or contrary to the policy of express law, though not expressly prohibited; or otherwise contrary to good morals." An answer setting up for defense a failure of consideration must show whether it is a partial or total failure.396 A partial failure of consideration can not be pleaded in bar of an action upon a note given for the purchase money of land.397 It is generally no defense to a promissory note.398 Partial failure of consideration could not be given in evidence, unless specially pleaded.399 Where the obligor of a single bill 395 391 Finley v. Quirk, 9 Minn. 184. 392 Gushee v. Leavitt, 5 Cal. 161; Dingeldein v. Third Ave. R. R. Co., 9 Bosw. 79. The facts showing illegality must be specially pleaded in the answer, if the complaint does not disclose the illegality. Buchtel v. Evans, 21 Oreg. 315; Jameson v. Coldwell, 23 id. 144; Lyts v. Keevey, 5 Wash. St. 606; Sharon v. Sharon, 68 Cal. 29; Heffron v. Pollard, 73 Tex. 96; 15 Am. St. Rep. 764; see Morrill v. Nightingale, 93 Cal. 452; 27 Am. St. Rep. 207. If it should appear from the testimony of plaintiff's witnesses that the contract in question is illegal or immoral, the court ought to dismiss the proceedings of its own motion on grounds of public policy, even though no such defense has been pleaded. Ah Doon v. Smith, 25 Oreg. 89; Irving v. McWilliams, N. B. Eq. 217. 393 United States v. Sawyer, 1 Gall. 86. 394 Cal. Civil Code, § 1608. 395 Id., § 1667. For certain contracts declared to be unlawful and void, see Id., §§ 1668-1676. 396 Clough v. Murray, 19 Abb. Pr. 97. 397 Reese v. Gordon, 19 Cal. 147. 398 Varnum v. Mauro, 2 Cranch C. C. 425. 899 Wallace v. Boston, 10 Mo. 660. Under New Mexico practice, In a suit on a promissory note, a partial failure of consideration may be proved under the general issue, and is a good defense pro tanto. Staab v. Ortiz, 3 N. Mex. 53. was sued by an assignee, and pleaded that the bill was given for the purchase of horses which were not as sound nor of as high a pedigree as had been represented by the seller, such a plea was admissible.400 § 3356. The same [TITLE.] that the debt was for money lost at play. Form No. 758 The defendant answers to the complaint: I. That the defendant and the plaintiff played together at a game of chance called ... for stakes, upon credit, and not for ready money; and at said games the plaintiff won dollars of the defendant, which he did not pay. II. That thereafter the defendant gave the plaintiff the note mentioned in the complaint for said money so staked and lost. that the note was given to compound a § 3357 The same felony. [TITLE.] Form No. 759. The defendant answers to the complaint, and alleges: I. That heretofore, on, etc., at, etc., one C. R., the son of the said defendant, had feloniously [here designate the crime — e. g., thus: stolen, taken and carried away property of the plaintiff]. the II. That the said defendant, in order to compound and settle said felony, gave the said note; in consideration of which the plaintiff and others desisted from informing and prosecuting upon said felony. III. That there was no other consideration for said note.401 § 3358. Want of jurisdiction of the person [TITLE.] Form No. 760. The defendant answers to the complaint: for the city of That he was at the commencement of this action, and is now, consul of .. duly accredited to the president of the United States, and by him received and acknowledged as such [or otherwise]. De $ 3359. Objection, how taken essential allegations. fenses in abatement of the suit, or going to the jurisdiction be 400 Withers v. Greene, 9 How. (U. S.) 213. 401 From Abbott's Forms, No. 801. |