Wadhams v. Swan

Citations

• 109 Ill. 46

Syllabus

<p>1. Pleading—special plea, faulty as being argumentative—and as amounting only to the general issue. In a suit on a note given for the purchase money of land which had been sold and conveyed by a minor, and which was not to be paid until the payee, after full age, should confirm her former deed, the declaration alleged that the plaintiff, “when she became of age, to-wit, on, etc., made and delivered to defendant her certain deed, wherein she did ratify the deed first above mentioned. ” The defendant, in one of his pleas, alleged “that the plaintiff has failed to confirm the sale of said land to the defendant:” Held, that the plea was defective in form, as being at most but an argumentative denial of the allegation in the declaration, and as failing to put in issue the alleged fact that the plaintiff, after becoming age, executed and delivered to the defendant a deed, wherein, etc., and also that the plea amounted to the general issue, only.</p> <p>2. A plea seeking to put in issue a fact the plaintiff is bound to prove under the general issue in order to recover, amounts only to the general issue, and for that reason is bad on special demurrer, or should be stricken from the files, on motion. But such defect in the plea is not reached by general demurrer.</p> <p>3. Pleading and evidence—proof of total or partial failure of consideration. A defendant can not, under a plea of no consideration, or total failure of consideration, show a partial failure, nor can he, under a plea of total failure of consideration, show there was no consideration.</p> <p>4. Same—recoupment, under special plea. A partial reduction of damages by recoupment can not be shown under a special plea in bar, but may be availed of under the general issue.</p> <p>5. Recoupment—definition. Recoupment, in the strict common law sense, is a mere reduction of the damages claimed by the plaintiff, by proof, under the general issue, of mitigating circumstances connected with or growing out of the transact