§ 3406. Accord and satisfaction. To a declaration for goods sold and delivered, claiming one hundred and twenty pounds, the defendant pleaded: 1. Never indebted; 2. "And for a further plea," that after the commencement of the suit, and after the last pleading, it was agreed that the plaintiff should accept from the defendant sixty pounds, in settlement of the debt sought to be recovered in the action; and the defendant paid, and plaintiff accepted, sixty pounds in satisfaction and discharge of said debt. On demurrer to the second plea it was held that the plea, being pleaded generally, must be taken to be pleaded to the whole cause of action; and as it alleged the payment after action brought to have been in satisfaction of the debt only, it was bad for leaving unanswered any damages to which the plaintiff might be entitled.*

The defendant answers to the complaint:

I. That said goods were sold and delivered to said defendant by said plaintiff on an express agreement, by and between them, that said plaintiff should accept in payment therefor a promissory note for the sum of ... dollars, drawn by this deday of ..... 18..,

fendant, and dated on the

[with an approved indorser].

before this action, the defendant tendered to the plaintiff such a note as above described, indorsed by one C. D., who was then and still is ........ in good credit and ability, and an approved indorser, and is still ready and willing to deliver the

same.

III. That the plaintiff refused to receive the same.

§ 3408. Credit not expired. In an action for goods sold an answer admitting the purchase of the goods, but averring that they were purchased on a credit not expired, is not a statement of new matter constituting a defense, but merely a special denial of the plaintiffs' allegation "that defendant is now indebted to the plaintiffs," a denial of the contract set up by the plaintiffs.5

4 Ash v. Pouppeville, L. R., 3 Q. B. 86.

5 Gilbert v. Cram, 12 How. Pr. 455.

3409. Sufficient answer. The complaint stated a cause of action for goods sold, and in addition, with a view to meet a probable defense of payment based upon the giving of certain notes by defendant and a receipt in full by plaintiff, stated the making of the notes and receipt, and alleged facts attending the transaction, which, if true, avoided its effect as payment, by reason of fraud and misrepresentation on the part of defendant. The answer admitted the original demand, and averred payment by the notes referred to in the complaint, but did not deny in proper form the allegations in the complaint respecting the fraud of defendant in the transaction. The case was submitted on the pleadings, and plaintiff had judgment. It was held that the judgment was erroneous; that the allegations of the complaint in reference to the transaction claimed to operate as payment were not material allegations requiring a denial, and were not, therefore, admitted by the failure of defendant to deny them."

§ 3410. The same - articles furnished defendant's wife not

The defendant answers to the complaint:

I. That the articles mentioned therein were not furnished to his said [wife or child] with his consent.

II. That the same were not necessary for his [wife or child].

3411. When not liable. A wife who without cause, and against her husband's will, refuses to live with him can not bind him for necessaries to a third party who knows that she is not living with her husband, and who sells to her without further inquiry.7

6 Canfield v. Tobias, 21 Cal. 349.

7 Brown v. Mudgett, 40 Vt. 68; Alley v. Winn, 134 Mass. 77; 45 Am. Rep. 297.

A. B. and C. D., two of the defendants in the above-entitled action, separately answering the complaint of the plaintiff in this said action:

I. Deny that they, or either of them, made the written guaranty set forth in the said complaint.

II. They deny that the [ale contained in the barrels] mentioned in said complaint [did sour during its voyage], or that it was [unfit for use] when it arrived here.

Wherefore defendants, A. B. and C. D., pray to be dismissed with their costs.

§ 3413. Denial of plaintiff's performance.

Form No. 781.

Denies that the plaintiff did supply the goods to the said A. B. alleged in the complaint, or any part thereof.

The defendant answers to the complaint:

I. That the defendant did not agree to be answerable generally to the plaintiff for the value of goods sold to the defendant, but only for goods to an amount not exceeding dollars, which limit the plaintiff exceeded in his alleged sale.

3415. Mistake. In an action upon contract, an answer which seeks to set up a mistake in the instrument embodying it must state what was the actual agreement, and the mistake in reducing it to writing.1

1 Wemple v. Stewart, 22 Barb. 154; and see Barton v. Sackett, 8 How. Pr. 358.

§ 3416. Rent. In an action against sureties to recover rent, the defendants alleged in their answer and proved that they understood they were to be sureties as for a rent of nine hundred dollars, and that the guaranty was executed by them under a mistake of facts; but it was not averred in the answer or proved that the plaintiff had the same understanding of the agreement; it was held that neither the matter set up in the answer nor the proof was sufficient to authorize a reformation of the contract so as to conform it to the understanding of the defendants.2

The defendants answer to the complaint:

I. That they did not make or deliver the policy of insurance alleged.

3418. The same

[TITLE.]

denial of plaintiff's interest.

Form No. 784.

The defendant answers to the complaint:

I. That the plaintiff did not own, and had no insurable interest in, the said goods [or building, etc.], at the time of the happening of said loss.

The defendant answers to the complaint:

I. That the said building was not destroyed [or injured] during term of said insurance by [state perils], but said loss occurred wholly by [indicate the excepted peril].

§ 3420. Conditions in policy. Denial of all liability on a policy, on the ground that the loss was not from a peril insured against, is a waiver of proof of loss, required in the policy, as also of an allowance therein to the insurers of sixty days in 2 Lanier v. Wyman, 5 Robt. 147.

which to pay. A policy of insurance on real and personal property contained a false warranty as to incumbrances on the realty; the personal property was separately valued and appraised; it did not appear that said warranty was an inducement to its insurance; it was held that plaintiff could recover the value of the personal property.1

§ 3421. The same — - policy obtained by misrepresentations. Form No. 786.

[TITLE.]

The defendant answers to the complaint, and alleges:

That the defendant was induced to subscribe the policy and become an insurer, as alleged in the complaint, by the misrepre sentation made by the plaintiff to the defendant of a fact then material to be known to the defendant, and material to the risk of the said policy; that is to say [state misrepresentation].2

§ 3422. Condition in policy. A condition in a policy that fraud or false swearing shall forfeit all claim relates only to the preliminary proofs, and a plea founded upon such condition must allege that the fraud, etc., was committed in those proofs, and that it was committed by the plaintiff or some party in interest.3 If a policy of insurance contains a clause that if the assured keep gunpowder the same shall be void, and the complaint avers that the plaintiff faithfully complied with the terms of the policy, and the answer does not deny the same, nor set up as new matter the keeping of the gunpowder, the fact can not be insisted on as a defense.4

1 Koontz v. Hannibal Savings & Ins. Co., 42 Mo. 126; 97 Am. Dec. 325.

2 State misrepresentations in like manner in life or accident policy. It is not deemed necessary to give a form for every defense arising under this class of actions. The defendant should state particularly and specifically in what respect the assured had vitiated the contract by fraud or mistake; or in what regard or on what account the defendant had ceased to be liable under the policy. Defenses to life and accident policy of insurance are not favored by the courts, unless very clearly meritorious.

3 Ferris v. North American Fire Ins. Co., 1 Hill, 71.

4 Cassacia v. Phoenix Ins. Co., 28 Cal. 628. Where a clause of a policy provides that it shall be void, "if the risk be increased by any means," the fact that there was an increase of risk by the act of the assured is an affirmative defense, and must be set up in the answer. Tischler v. California, etc., Fire Ins. Co., 66 Cal. 178.