Bradner v. Demick

delivered the opinion of the Court. If the plea is double, the plaintiffs cannot object to it on this demurrer. They ought to have demurred specially for that cause. (1 Chitty's Pl. 512.) I incline to think, that the several matters alleged in the plea, may be considered constituent parts of the same entire defence, and form one connected proposition. The material fact on which the defendant must rely, to defeat a recovery, is, the fraud which the *406plea avers the plaintiffs practised. If the fraud is traversed, then the residue of the plea amounts to nothing more than this ; that the defendant purchased the land, and the plaintiffs had no title. All this may be strictly true, and yet the consideration of the note be valid. The fraud alleged, in the representations previous to the purchase-, is denied by the replication. It is not averred, that at tfíe time of purchase, and when the note was given, the plaintiffs knew they had no title; for aught that appears, the plaintiffs may have given a quit-claim deed, and the defendant accepted it; if so, the want of title is no ground for rescinding the contract. The loss, in that case, falls on the defendant.

The rule is, undoubtedly, well settled, that the replication must answer so much of the plea as it professes to answer ; and as, in the present case, it professes to answer the whole substance of the plea, if it fails, in this respect, it is bad. A party may deny any material allegation in his opponent’s pleading ; but where the allegation is not material, it cannot be traversed. (1 Chitty’s Pl. 586.) I consider the fraudulent representation of the plaintiffs, as the material allegation contained in the plea, and, therefore, a replication at once denying that fact, is sanctioned by the rules of pleading. (1 Chitty’s Pl. 592.) The finding on this issue, either way, disposes of the cause ; if for the plaintiffs, the plaintiffs are entitled to recover, because all the remaining allegations of the plea, not embraced by this issue, furnish no defence against the action; if found for the defendant, then it appearing, that the contract is tainted with fraud, the defendant must prevail. ,

We are of opinion, that the demurrer is not well taken, and that the plaintiffs are entitled to judgment, with leave to the defendant to withdraw his demurrer, and abide the issue taken to the plea.

Judgment for the plaintiffs accordingly.