Heisen v. Churchill

Citations

• 179 F. 828
• 103 C.C.A. 320
• 1910 U.S. App. LEXIS 4712

Syllabus

<p>1. Pleading (§§ 36, 127*) — Admission in Pleading — Scope and Effect.</p> <p>In an action against a number of defendants as partners, one of the defendants filed a special plea denying the partnership and also a plea of the general issue with notice of proof of a set-off consisting of an indebtedness on account; the heading on the copy of account attached stating the indebtedness to be to defendants as copartners under a company name. A motion by such defendant to withdraw the plea of set-off was denied Held, that while the statement in the heading of the account, conceding that the court rightly refused to permit it to be withdrawn, was open to use as an admission of the partnership, it was not conclusive and did not estop defendant from introducing evidence in support of his special plea that the company was a corporation and dealt with plaintiff as such.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 81-86, 264-268; Dec. Dig. §§ 36, 127.*]</p> <p>2. Pleading (§§ 92, 369*) — Inconsistent Pleas — Right of Election.</p> <p>In an action against defendants as partners, a plea denying the partnership and one of set-off are not inconsistent, where the first plea raises the question of the validity of an attempted incorporation; but even if so the defendants have the right of election between them, and the court cannot refuse to permit them to withdraw the second and give it effect as an estoppel to prevent the introduction of evidence under the first.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 188, 1201; Dec. Dig. §§ 92, 369.*]</p>