Opinion
December 7, 1906.
Schuyler C. Carlton, for the appellant.
Henry U. Hart, for the respondent.
Plaintiff sues for goods furnished, alleging that they were sold to defendant at her request, and that she agreed to pay for them. In addition to a general denial the defendant interposed two defenses. One alleges that she was, at the time mentioned in the complaint, a married woman, living with her husband, as plaintiff well knew, and that the goods were sold and delivered with and on the faith and credit of defendant's husband. The second separate defense respecting the foregoing allegation alleges that the plaintiff brought suit against defendant's husband for the same bill of goods, and accepted from him at dates prior to the commencement of this action the sum of $1,000 in part payment for said goods, and a confession of judgment for the price or value of the same goods sued for in this action. The Code of Civil Procedure (§ 516) authorizes the court, in its discretion, to compel a reply to new matter contained in an answer and therein set up as a defense by way of avoidance, and this discretion is usually exercised where the new matter is of such a character as to indicate that if true it will constitute a defense to the action, the purpose being to simplify the issues and prevent surprise at the trial. We are of opinion that the second separate defense, wherein the defendant in effect pleaded an election of remedies by the plaintiff, is of a character which called upon the court to exercise its discretion and to require a reply to be served. If the plaintiff relies upon any facts by which she expects to avoid the apparent sufficiency of this defense she should be required to plead them.
The order appealed from will, therefore, be reversed, without. costs in this court, and the motion granted to the extent of requiring the plaintiff to reply to the second separate defense contained in the answer.
PATTERSON, INGRAHAM, LAUGHLIN and CLARKE, JJ., concurred.
Order reversed, without costs, and motion granted to the extent of requiring plaintiff to reply to second separate defense. Order filed.