Baer v. Ciotti

The motion for a reargument of this case will be overruled.

The gist of the narr. is that, after due notice, “the defendants failed and refused to -build the wall.”

It seems to this court that the defendants did not, in any true legal sense, “refuse” to build the wall, and that there can be liability upon them for “failure” to build the wall, provided that the allegations of the fifth plea are true, viz: that “without fault of these defendants, or any of them,” the defendants “were prevented from erecting said wall by the acts of plaintiffs”

The fifth plea, therefore, presents a good defense.

If the counsel for plaintiff desires he can demur to the first four pleas of the defendant. Sustaining a demurrer *527to four pleas out of five, is very different from entering up judgement in favor of the plaintiff for the full amount claimed because no sufficient defense has been made.