Kendall v. Vallejo

By the Court,

Bennett, J. The complaint is founded itpom a special contract, by which the plaintiff agreed to build a [372]corral for the defendant for the sum of $2400, and it alleges that the work was completed within the time, and of the dimensions, required by the contract. The answer denies the making of the contract, and also that the “ plaintiff built and completed “ a corral for the defendant in manner and form as the plaintiff “ has above thereof complained.”

At the trial the defendant offered to prove, “ that the corral “ mentioned and described in the complaint was not built in a “ workmanlike manner, and that it would not answer the pur- “ pose for which it was intended.” This offer was overruled by the court, and the proposition thus presented forms the only point in the case.

Under the new system of practice- adopted in this state, the plaintiff is required to set forth in his complaint a statement of the facte constituting his cause of action, {Practice Act, sec. 38,) and the defendant, in his answer, a general or specific denial of each allegation of the complaint controverted by him, and a statement of any neve matter constituting a defense, (id. sec. 45.)

We think that the defect, if any existed, in the construction of the corral, was new matter within the meaning of this clause of the statute, which should have been specially set up in the answer. The object aimed at by our system of pleading is to apprise the opposite party of the nature of the action, and of the grounds of defense, which the parties respectively intend to rely upon at the trial. This purpose will be more surely attained by requiring such a defense as the one under consideration, to be specially alleged in the answer. Under the old plea of the general issue in an action of assumpsit, the defense that work for which the plaintiff sought to recover, was performed in an unskillful manner, has been in some cases held tobe admissible; (10 Barr. 43;) while, in others, it has been required to be specially noticed. (The Mayor, &c., of Albany v. Trowbridge, 5 Hill, 71; Barber v. Rose, id. 76.) We think the doctrine of the latter cases more consistent with our system of pleading, than that of the case cited from Barr's Reports, and shall, ac-eordingly, adopt it. It follows that the ruling of the district [373]