I. He denies each and every allegation in said complaint, except what is hereinafter admitted.

II. The defendant admits that said plaintiff did, at the request of defendant, enter into the service of the defendant as stated in the complaint, but alleges that he did account with said plaintiff on the 18..,

........

day of

at

and that on the said accounting there was found

....

... dollars.

due said plaintiff only the sum of 2. For a second defense defendant alleges that after said accounting in the first defense alleged, to-wit, on the .....

day of sum of

18.., he paid to the plaintiff the said dollars so found due upon said accounting and the plaintiff received and accepted the same in full satisfaction of his said claim.1

§ 3455. Contractor's services. When the defendants employed the plaintiff to superintend the erection of a building, of which he was one of the contractors, they can not plead that it is against public policy that he should occupy two positions, of which the interests were in conflict, in defense of an action brought by him for services as superintendent.2

§ 3456. Corporation work. In an action against a municipal corporation for work and labor, an answer setting up that there was an appropriation made by law for such work, which has

1 For another form of answer, see Rice v. O'Connor, 10 Abb. Pr. 362. A plea merely of an account stated, though it avers a balance, and a promise of plaintiff to pay it, is bad, for it is a mere accord, without satisfaction. Bump v. Phoenix, 6 Hill, 308.

2 Shaw v. Andrews & Hillyer, 9 Cal. 73.

§ 3468. The same

[TITLE.]

· assignee's assignment to third person. Form No. 801.

The defendant answers to the complaint:

That before the rent claimed in the complaint became due, and on or about the ..... ... day of ..... 18.., the

defendant assigned all his interest in said lease to one C. D., who then entered into possession, and so continued when said rent became due.

3469. Assignment. One of the Van Rensselaer leases was executed in 1799. It did not appear that rent was ever paid under it, and it was proved that rent had not been paid for twenty-two years. It was held that as the so-called lease was in fee, it was an assignment, and did not create the relation of landlord and tenant, and that the claim against the grantee on his covenant was barred."

tiff evicted him from the premises mentioned in the complaint, and has ever since kept him out of the possession thereof [or state the facts].

§ 3471. Forfeiture. To work a forfeiture of a lease for nonpayment of rent, a demand must be made for the precise sum due on the premises, or wherever the rent is payable."

§ 3472. How averred. The eviction, to constitute a bar, must be averred to have taken place before the rent claimed fell due.8 It must be stated that the tenant was evicted or expelled from the premises, and kept out of possession until after the rent became due.9

5 Lyon v. Chase, 51 Barb. 13; see Cruger v. McClaughry, id. 642; Van Rensselaer v. Barringer, 39 N. Y. 9; Hosford v. Ballard, 39 id. 147; see, also, McLerar v. Benton, 43 Cal. 468.

6 See Vernam v. Smith, 15 N. Y. 333; also New York Code Commissioners' Book of Forms.

7 Gage v. Bates, 40 Cal. 384; O'Connor v. Kelly, 41 id. 452.

8 McCarty v. Hudsons, 24 Wend. 291.

9 Vernam v. Smith, 15 N. Y. 327.

Constructive eviction, rellev

ing tenant from payment of rent. See Skaggs v. Emerson, 50 Cal. 3; Fillebrown v. Hoar, 124 Mass. 580.

§ 3473. Insufficient defense. In an action for rent the complaint alleged that the letting was by an agreement in writing (not stated to be under seal), by which the plaintiff leased the premises, and the defendant agreed to pay the rent; but it did not allege that the defendant took possession. The answer set up two defenses: 1. That although the plaintiff, at the time of making the lease, represented that he was the owner of the premises, and entitled to lease them, he was not, but that the premises were owned by third parties, "to whom the defendant was liable for the use and occupation thereof," and that no estate or interest vested in the defendant by the lease; 2. That the lease contained an agreement for quiet enjoyment; that shortly after defendant entered into possession, one W. brought an action of ejectment against him, and after defense recovered judgment against him for the possession, with costs; that W. made claim on the defendant for mesne profits in a sum equal to the rent claimed by the plaintiff, and defendant demanded judgment against the plaintiff for his damages by failure of the plaintiff's title. It was held, on demurrer to the answer, that since the defendant had voluntarily shown the fact of occupation, which the plaintiff had omitted to state, the rule precluding the tenant from denying his landlord's title, in an action for use and occupation, must be held to apply, and that the first defense was insufficient. If there was any other party who had an apparent claim for the use of the premises, the defendant should have sought a remedy by interpleader. That the second defense was insufficient, it showing no eviction.10

§ 3474. Must be specially set up. New matter in defense, such as an eviction, must be specially pleaded.11 In an action for rent the defendant pleaded that the plaintiff, during the term, leased to another person and excluded the defendant from a part of the premises, in the use of which by the second lessee large quantities of water, etc., were discharged on the defendant's part, and so damaged their goods that they were forced to quit the premises; and they claimed damages therefor in the action; it was held that the averments in the plea constitute eviction, and were not set-off.12

10 Vernam v. Smith, 15 N. Y. 327.

11 Coles v. Soulsby, 21 Cal. 47; overruling McLarren v. Spalding, 2 id. 410; 56 Am. Dec. 348, where it was held that defendant might prove an eviction under a plea substantially of nil debet.

12 Dunwoody v. Raynor, 52 Penn. St. 292.

The defendant answers to the complaint:

That on the ..... day of ...

18.., he sur

rendered to the plaintiff the premises mentioned in the com

plaint, and the plaintiff accepted the same.

§ 3476. The same — a defense to one installment.

[TITLE.]

Form No. 804.

The defendant answers to the complaint:

That to the last installment mentioned in the complaint the defendant alleges that after the alleged lease was made [or after the alleged letting], and before said installment became due, the plaintiff evicted him from the premises, and has ever since kept him out of the possession thereof.

CHAPTER XI.

ANSWERS UPON WRITTEN INSTRUMENTS FOR THE PAYMENT OF

MONEY ONLY.

§ 3477. Bills of exchange-denial of acceptance.

[TITLE.]

Form No. 805.

The defendant answers to the complaint, and denies that he accepted the bill mentioned therein.1

The defendant answers to the complaint, and alleges: That the said bill was made without the authority or consent of these defendants, and out of the course of their regular business, and without consideration to them, accepted in their name by one A. B., fraudulently pretending to act under their authority, but who in fact had no authority to accept the same.

1 See generally, as to negotiable paper, bonds, bills of exchange, promissory notes, etc., vol. 1, and Cal. Civil Code, §§ 3087-3164.

The defendant answers to the complaint, and alleges: That the bill mentioned therein was never presented to A. B., as alleged, or at all.

§ 3480. Presentment — time — place. The holder of a check did not present it for payment until twenty-five days after it was drawn, the drawer having failed meantime. The deposit with the drawee was made in funds which had become depreciated, but which did not appear to have been so at the time of the deposit. In a suit on the check as a bill of exchange, it was held that the drawer was discharged.2 Plaintiff took from her debtor's agent the agent's check for the amount of the debt, and did not present it for payment for four weeks. When presented it was dishonored, but there was a reasonable chance, though not a certainty, that it would have been paid if presented at once. The debtor, a week after the check was made, paid his agent part of the amount, the rest being in the agent's hands already. The agent absconded. It was held that the debtor was discharged.3 The mere fact that one in a regular course of business, in good faith, and for value, receives a check ten days after it was drawn and dated, does not subject him to the equities between the original parties to the same. The failure to make presentment at the place named would not discharge a debt, but could only be pleaded in defense as to the question of costs and damages. A plea that a bill of exchange, on which the action is founded, was not drawn and accepted at the place alleged, is bad on demurrer."

The defendant answers to the complaint, and alleges:

That he accepted the bill mentioned in the complaint for the accommodation of the plaintiff; and that there was never

2 Willets v. Paine, 43 Ill. 533.

3 Hopkins v. Ware, L. R., 4 Exch. 268.

4 Ames v. Mariam, 98 Mass. 294. As to how and when presentment must be made, see Cal. Civil Code, § 3131.

5 Montgomery v. Tutt, 11 Cal. 307.

6 Jones v. Heaton, 1 McLean, 317.