Dixie Guano Co. v. Alpha Process Co.

Citations

• 28 Del. 277
• 5 Boyce 277
• 92 A. 1013
• 1915 Del. LEXIS 4

Syllabus

<p>1. Pleading—Amendment—Allowance.</p> <p>An application to amend by withdrawing a pleading and demurring specially should be denied, unless the court, from an examination of the pleadings sought to be attacked, can see that the demurrer would lie.</p> <p>2. Pleading—Amendments—Demurrer—‘ ‘ Pleading “ Proceeding. ’'</p> <p>Leave to withdraw a general demurrer and file a special one will not be granted unless it appears that the special demurrer would probably be sustained, for a demurrer is a ‘‘pleading’’ in the broadest sense of that term, which includes all of the proceedings from the complaint until the issue is joined, and, if not a pleading, is at least a “proceeding’’.</p> <p>3. Sales—Action for Breach—Plea—Sufficiency.</p> <p>Where the declaration in an action for breach of a contract of sale, providing for suspension in case of fire or other unavoidable accident to the seller’s works, etc., alleged that performance was not prevented by fire or other unavoidable accidents or contingencies beyond the seller's control, a plea that the seller was prevented from fulfilling the contract by contingencies beyond its control is insufficient, for while a general denial or traverse of a material averment of the declaration, in the very words thereof, usually constitutes a good plea, yet, when the facts are peculiarly within defendant’s knowledge, he should set them out.</p> <p>4. Pleading—Plea—Sufficiency.</p> <p>Ordinarily a general denial or traverse of a material averment of the declaration is sufficient.</p> <p>5. Pleading—Plea—“Duplicity”.</p> <p>A plea is “duplicitous” when two or more distinct matters are set up, each of which would be a valid answer to the declaration or count, but several facts constituting only one defense may be pleaded.</p> <p>6. Pleading—Amendments—Allowance.</p> <p>Where plaintiff desired leave to withdraw its general and substitute a special demurrer, leave should be granted where the special demurrer would be sustained to two of the th