Reid v. Merrill

WASTE, C. J.

Action to foreclose a mortgage. It was alleged in the complaint that the due date of the note was September 25, 1935. The answer admitted the allegations of the complaint, except that of the due date, and in that behalf alleged “that said promissory note was, and was agreed to be, for a term of five years from September 15, 1929 in other words, that it fell due two years after the date alleged in the

[695]

complaint. As a first and affirmative defense, and also by way of a cross-complaint for reformation of the promissory note, the defendants pleaded facts to the effect that defendants and Alice Craig Stone entered into an agreement in writing that the said Alice Craig Stone would loan the defendants the sum of money involved, the amount to be represented by a promissory note of the defendants, secured by a mortgage, with a maturity date of September 15, 1934; that Alice Craig Stone prepared a promissory note and mortgage which were signed and executed by the defendants at the instance and request of Alice Craig Stone, the defendants believing and relying upon the representations made by Alice Craig Stone “that the promissory note and mortgage conformed to the written agreement of the parties relative to the term of the promissory note; that in fact the promissory note so executed by defendants was made for a term of three years by the said Alice Craig Stone with knowledge of said agreement that the term thereof would be for a period of five years, and with intent to deceive and defraud said defendants ’ ’.

The defendants in their cross-complaint referred by appropriate numbers to the allegations of the first affirmative defense of the answer, “and by [such] reference incorporates and alleges the same [in the cross-complaint] as fully as though said paragraphs were set forth [therein].” It was further alleged in the cross-complaint that “by mutual mistake of the parties” the note was made to mature on September 15, 193S, instead of on September 15, 1934. Without, for the moment, considering the sufficiency of the cross-complaint, we are of the view that the allegations of the first affirmative defense thus referred to and incorporated in the cross-complaint must be considered as part of that pleading.

(Green

v.