FEDERAL REPORTER. MCCONVILU.tI. GIUvIOUR et al., (two cases.)
Oircuit Oourt, S. D. Ohio, W. D. August 2fi, 1888.)
NEGOTIABLE INSTRUMENTS-AcTJONS-PLEADING-DENIAL OF PARTNERSHIP.
An answer to a petition on partnership promissory notes, which sets out that, "not having access to the notes," defendants deny "all allegations thereabouts. "does not put in issue the partnership. The denial must be, whether general or specific, so certain that a prosecution for perjury would lie upon it, if untrue.
At Law. This is a suit upon notes aggregating $36,160, by the agent of the insolvent Metropolitan National Bank of Cincinnati against H. C. Gilmour & Co., composed of H. C. Gilmour and Louisa Gilmour. The petition is as follows: UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION. James McOonville, Receiver of the Metropolitan National Bank of Oincinnati, Ohio, Plaintiff, vs. Henry O. Gilmour and Louisa Gilmour, doing business under the jl1'm name of Henry O. Gilmour & 00., Defendants. PETITION. Now comes the plaintiff, James McConville, and says that he is the duly-appointed and qualified receiver of the Metropolitan National Bank of Cincinnati, Ohio; which was a corporation organized under the banking laws of the United States, and that as such receiver he is now engaged in winding up the affairs of said bank, and for which purpose this suit is brought. And he further says that he is a citizen and resident of the Southern district of Ohio. Plaintiff says that the said defendants, Henry C. Gilmour and Louisa Gilmour, doing business under the firm name of Henry C. Gilmour &; Co., are citizens and rellidents of the Southern district of Ohio, and of the Western division t.hereof. Plaintiff further says that he is the holder and owner for value of a certain note of which the defendants, Henry C. Gilmour and Louisa Gilmour, doing business under the lirm name of Henry C. Gilmour & Co., are the makers and indorsers. [Here follows a description of the note.] . Second. And for second cause of action plaintiff says that he is the holder and owner for value of a certain note, of which the defendants, Henry C. Gilmour and Louisa Gilmour, doing Qusiness under the firm name of Henry C. Gilmour & Co., are the maktlrs and indorsers. [Here follow", a description of the note.] Wher6i!'ore plaintiff prays jUdgment against the. said defendants, Henry C. Gilmour and Louisa Gilmour, doing business under the firm name of Henry C. Gilmour & Co., in the sum of $;)6,160, with interest, etc., W. B. BURNET & J. E. BRUCE, Attys. for Piff. and for his costs.
The answer is as follows: UNITED STA'l'ES CIRCUIT COURT, SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION. James McOonville. of the Metropolitan Natiollal Bank of Oincinnati, Ohio, Plaintiff, vs. Henry C. Gilmour and Louisa Gilmour et al., Difendants. ANSWER. And now come the defendants, and for answer" to plaintiff's petition say: (1) They deny that said plaintiff is the duly-appointed and qualified receiver of the Metropolitan National Bank of Cincinnati, Ohio; that as such receiver
M'CONVILLE ". GILMOUR.
he is now engaged In winding up the affairs of said bank; and that plaintiff is a citizen of the Southern district of Ohio; and they demand strict proof thereof. (2) They deny that said plaintiff is the holder or owner of anyone of the notes in plaintiff's petition described. (3) They say that, not having access to the notes in said plaintiff's petition described, they deny all the allegations in said petition contained thereabouts. (4) And, further answering, they say that it is true that they at several times executed and delivered to the Metropolitan National Bank their certain promissory notes, and that at that time it was agreed between said bank and these defendants that when said notes matured they would be extended upon demand made by these defendants; that such demand was made at that time; that the time at which the debt represented by said notes becomes due has not yet arrived, and, if the notes set forth in said plaintiff's petition are those executed by these defendants to said bank, they are, each and all, subject to said agreement, and said debt is not yet due, and no recovery should be had upon any of the same. Wherefore, having fully answered, defendants ask to be hence dismissed with CHAMPION and WILLIAMS, Attorneys for Defendants. costs. State of Ohio, Hamilton County, 88.: .Henry C. Gilmour, being first duly sworn, says that he is one of the defendants in the above-entitled action, and that the facts set forth, and the allegations contained in the foregoing an· swer are true, as he verily believes. HENRY C. GILMOUR. Sworn to before me, and subscribed in my presence, this 26th day of June, in the year 18l:l8. JAS. J. MUIR, Notary Public, Hamilton County, Ohio. [Seal.]
By stipulation the case was tried without a jury, and the plaintiff offered in evidence the notes, to which objection was made as not being proved to be the notes of the defendants. Without any ruling on the objection, the plaintiff offered a witness,-the cashier of the bank,-who testified that the notes were signed by Henry C. Gilmour in the form of the firm signature, "H. C. GILMOUR & Co.;" and thereupon the plaintiff rested. The defendants moved for judgment npon the ground that the alleged partnership was not proven by the plaintiff, and that, at least, there could be no judgment against Louisa Gilmour, who did not sign the notes, nor was any authority shown to bind her, by a partnership signature or otherwise. W. B. Burnet and John E. Bruce, for plaintiff. Champion &; Williams and Logan &; Slattery, for defendants. HAMMOND, J., (after stating the facts as above.) The modern rule of the Clades. and statutes, unlike the common law, does not require proof of the execution of the notes, except upon some sworn denial of that execlitionby a plea of non estfactum,or that which is equivalent to it. Such a plea, by one alleged to be a member of a partnership, puts in issue the partnership itself, because denying the authority of him who signed the note to bind him who denies the execution of it, as one partner may bind This is conceded, as I understand it, to be the law of Ohio. But it is said that this answer, by its paragraph 3, is such a denial, and sufficient in Ohio to put the plaintiff to the proof of each and every allegation of the petition. But it is to be observed that the paragraph does not deny each and every allegation of the petition in so many words, 88 is usual where suchan effect is intended by the pleader; nor does it
specifically deny the execution ofthe nbtes,as would a technical plea of non. est faCtum; nOr yet does it speclfi,cally deny the averment of a partnership;as is customary where. of petition and answer prevails, and .assimilates the forms; plare to those used inequity than to those used at law, as in Ohio. .It denies" all aHegations in said petition contained thereabouts." which is a very unique and peculiar form of denial within itself, to say the least Mit. It is neither like the general denial of a plea at law, nor the specific denial ofar; answer or plea in equity. It is a qualified denial in its form, andis, upon the face of it, less in some degree than the general issue at law, or the general denials in use in equity pleadings. WQenwe search· for the limitations of the qualifying words "all allegations thereabouts," we find them as we may and must in the immediately preceding context, and in the general scope of the answer. In the first place, the answer itself. as a whole, is. in form, not one contented with a general denial, hQwever inartificial or indefinite, but contains not'less thim four speciflc4enials in two separate paragraphs preceding the paragraph in question, and in one succeeding paragraph an admission that is accompanied by allegations or matter in avoidance that are couched in tbelanguage of specific and definite averment; the pleading altogether showing an intention to deny specifically, and not generally. Coming then to the third paragraph, the pleader sets out that, "not having access to the notes," the defendants deny "all allegations thereabouts,"-discarding all mere formal words, this is the substance of it. Every allegation in the petition relates to the notes in the sense that they are the subject of the demand of the petition for judgment upon them, the averment of the partnership of the defendants being neither more nor less" thereabouts" than the. others, which are specifically denied, everyone of them. Why, then, should that be reserved for a general denial, indefinite and ambiguous, while all other are specifically treated? At least such a method militates against any indulgence of implications in favor of the pleading as one of genera,l denial, and precludes the notion of making it more elastic than it actually is by implications of an intention to include within it the denial of a fact llot clearly within its natural scope of meaning. Again, the averment of partnership, or rather the defendants' knowledge of the fact of partnership, in no way connects itself with access to the notes. It was not necessary to have access to the notes to know whether the averment of partnership was true or not, nor to determine whether the defendants would deny that allegation of the petition or not; wherefore the language used naturally limits itself to all allegations about the notes which were dependent upon access to them as a means of specific knowledge concerning the fact intended to be denied, and this, in the nature of the thing, must be confined to a lack of knowledge of the genuineness of the partnership signature, and not to any lack of information as to the faet of the partnership itself. Not having seen the signatures to the notes, the defendants might well say we do not know that they are the genuine signatures of our firm; but because of that they need not say that we deny that we were partners, nor do the
M'CONVILLE tI. GILMOUR.
two depend at all upon each other. This is made more plain by the next paragraph, which a.dmits the execution of certain D,otes, and avers that, if these are those notes, we had a promise ofextension. That paragraph was stricken out on motion of plaintiffs, as not being a sufficient defense, but it may be looked to in construing the pleading as a whole, or the language of any particular part of it. The court is aware of the force of the position that thevlea of non eBt factum, or a denial Of the genuineness of a firm signa.ture, may be made in such shape as to place on the plaintiff the burden of proving not only the execution of the note as to the genuineness of its signature, but as to the authority of one assuming to bind another as a partner; and under common-law procedure, the technical form for a plea of non eBt factum being used, such would be the result; but under Code pleading it is within the option of the pleader to plead generally or specifically, and whether he has, outside of the common law-forms or their equivalents in Code pleading, by the use of language, done one or the other, is always open to inquiry, and he will be held to the common rules of construction in the use of the language used in determining the inquiry A denial in pleading should be so specific and unequivocal that an indictment for perjury would lie upon the denial. Bliss, Code Pl. § 331; Lewis v. Ooulter, 10 Ohio St. 451. Could the defendants here be indicted for perjury if the partnership exists in fact, because of this alleged denial of it? Manifestly the pleader intended to escape that calamity, if the averment at all contemplated a denial of the partnership; and if successfully he has escaped it, it is on the theory that the partnership is not, in fact, denied by the pleading. The defendants cannot be permitted to use language as and for a general denial of the partnership, which, upon an indictment for perjury, would protect them because of its ambiguity. If not good on an indictment for perjury, it is. not good here in this case for the purpose of a denial of the partnership. The entire language of a pleading must be taken together to ascertain the meaning. 1.'rimble v. Doty, 16 Ohio St. 130. We cannot, therefore, strike out as surplusage the qualifying words, and pick out only spch as would give the pleader the benefit of a general denial upon verified pleadings for the purposes of issue, and yet leave him to escape a prQaecution for perjury by relying on the surplus words to qualify his oath. Judgment for plaintiff.
FEDERAL REPORTER. UNITED STATES
(District Court, S. lJ. Ohio, Tv. lJ. August 28, 1888.)
ADJOINING LAND-OWNERS-LATERAL SUPPORT-INJURY TO ALLEY.
An owner of land abutting on an alley, who, in excavating, constructs a retaining wall inadequate to support the alley, which gives way and injures the SIdewalk of the opposite owner, is not liable for tlie inj ury, in the absence of negligence. And the employment of a competent architect and skillful workman negatives the charge of negligence, on the facts of this case.
PLEADING AND PROOF-DEPARTURE.
The petition alleged that the injury was caused by defendant negligently, carelessly, and unskillfully digging' an excavation. Held, that evidence that the injury was caused by the inadequate strength of a retaining wall of the excavation was not a departure.
At Law. Action for damages. Action by the United States against Henry Peachy and Charles Robson, administrators of George A. Smith, deceased, for an injury to the sidewalk of the federal building at Cincinnati, caused by the ca"ing in of an alley which defendants' intestate had neglected to support by a sufficient retaining wall. James Harlan Cleveland, Asst. Dist. Atty., for plaintiff, Simeon M. Johnson and Albert Boettinger, for defendants. HAMMOND, J. The federal building at Cincinnati is bounded on one side by Patterson alley, one of the public ways of that city, and immediately opposite the defendant's intestate owned a lot upon which he erected an extensive building, used for business purposes. The area wall of the intestate's building along his side of the alley, as at first con:structed, was inadequate, by reason of which the structures of the alley gave way by caving, and the stone sidewalk of the goverluuent building, along its side of the alley, was injured to the extent of some $416, the cost of repairing it, as is agreed by the parties, so far as concerns the RmouIft of damages. This is a suit to recover that damage from the defendants .. The petition alleges that the said George H. Smith "did negligently, carelessly, and unskillfully dig, or cause to be dug, a cellar or excavation on his said lot to a depth of twenty-two feet below the curb, etc., by reason of which the bank of said excavation caved in," etc. Both upon demurrer and by objections to testimony reserved until now the defendants insist that proof of inadequacy of strength in the retaining wall is a departure from this allegation of the petition, and is a different act of negligence from that alleged in the pleading. Undoubtedly the best pleading required, I should think, that the precise act of negligence should be stated, if possible, although the law does not require one to put his evidence in his pleading. Still, the building of the retaining wall is in every sense only a part of the excavation which was made. It is not one of the walls of the building, and has no connection with it as a part of its own structure, but is simply made to maintain an open