Opinion
On motion to strike defendant's denial of paragraph of the complaint. The District Court, Weinfeld, J., held that the general denial of defendant was insufficient to raise an issue with respect to plaintiff's allegation of the performance of conditions precedent and that if defendant intended to rely upon nonperformance of the condition subsequent, it was required to plead it as an affirmative defense.
Denial stricken with leave to defendant to plead anew.
Sage, Gray, Todd & Sims, New York City, Edward H. Spencer, George W. McGrath, Jr., New York City, of counsel, for plaintiff.
Davies, Hardy & Schenck, New York City, John W. Burke, Jr., Burton H. Brody, New York City, of counsel, for defendant.
WEINFELD, District Judge.
The defendant assumes that plaintiff's allegation that it ‘ duly performed all the terms and conditions' of the contract refers to and pleads performance of conditions precedent. Accordingly, its general denial is insufficient to raise an issue with respect thereto, since Rule 9(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., requires that a denial of performance of conditions precedent shall be made specifically and with particularity. As much is conceded by defendant. It urges, however, that what is put in issue by the general denial is performance of the ‘ terms' of the contract, pleaded conjunctively with ‘ conditions.’ However, if ‘ terms' refers to conditions subsequent and defendant intends to rely upon non-performance thereof, it would be required to plead it as an affirmative defense. Thus, in either event the denial is insufficient.
‘ In contract writing [condition] * * * is often used as synonymous with ‘ term,’ ‘ provision,’ or ‘ clause’ * * *.' 3 Corbin on Contracts, § 627.
2 Moore's Federal Practice, 2d Ed., ¶ 9.04; see Title Guaranty & Surety Co. v. Nichols, 224 U.S. 346, 32 S.Ct. 475, 56 L.Ed. 795.
The denial of ¶ 6 of the complaint is stricken with leave to the defendant to plead anew.
Settle order on notice.