Farmers & Merchants' Insurance v. Menz, 63 Ill. 116 (1872)

Jan. 1872 · Illinois Supreme Court
63 Ill. 116
Farmers and Merchants' Ins. Co. v. John Menz

Farmers and Merchants’ Ins. Co. v. John Menz.

1. Pleading—demurrer. Where a plea of set-off sets up several distinct grounds of indebtedness, if any one of the causes of indebtedness is defectively pleaded while the others are well stated, the defect can only be reached by a special demurrer to the defective portions of the plea. '

2. Thus, where a plea of set-off stated an indebtedness from the plaintiff to defendant, first, for money had and received; second, on an account stated; and third, upon a policy of insurance assigned to the defendant by a third party: Meld, that a general demurrer to the plea was properly overruled.

Appeal- from the Circuit Court of Madison county; the Hon. Joseph Gillespie, Judge, presiding.

Mr. W. P. Bradshaw, for the appellant.

Messrs. Irwin & Krouse, for the appellee.

Per Curiam :

This was an action for money had and received. The defendant pleaded a set-off, setting up that the plaintiff was indebted to the defendant, first, for money had and received ; second, on an account stated ; and third, upon a policy of insurance assigned to the defendant by one Beecher. The plaintiff demurred generally to this plea. The demurrer was overruled, and the plaintiff abided by his demurrer.

We suppose the counsel for plaintiff intended, by his demurrer, to question the sufficiency of the third ground of indebtedness presented by the plea. To do this, he should have demurred specially to that part of the plea. A plea- of set-off, setting up several grounds of indebtedness, is like a declaration containing several counts. On a general demurrer to such a declaration, if there is one good count, the demurrer must be overruled. So of a general demurrer to a plea of *117set-off stating distinct debts. Chitty lays down the rule that, in such cases, if one part stating a distinct debt be good, a demurrer for mispleading in the other part must be confined to -the defective statement, and a general demurrer is not sustainable. 1 Chitty Pl. 575.

The judgment must be affirmed.

Judgment affirmed.