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An equitable estoppel might be pleaded in an action of ejectment at common law. 13

The defense of mistake as to a material fact which induced the execution of a contract had to be tried on the equity side of the court, when it is not denied that the parties knew the nature of the paper which was executed,14 although a material provision of the contract was omitted by mutual mistake.15 A defense of fraud which related to the execution of the contract such as a misreading or mis-statement of its contents

or the surreptitious substitution of one paper for another 17 or the obtaining by some other trick or device an instrument which the pleader did not intend to give 18 before the statute, might be pleaded at common law. So it was held in some cases might be the defense of any fraudulent representation, when the instrument was not under seal.19 Where the contract was under seal,


18 Dickerson v. Colgrove, 100 U. S. 578, 582, 25 L. ed. 618, 620; Wehrman v. Conklin, 155 U. S. 327, 39 L. ed. 173; Marine Iron Works v. Wiess, C. C. A., 148 Fed. 145; Kirk v. Hamilton, 102 U. S. 68, 26 L. ed. 79; Nat. Nickel Co. v. Nevada Nickel Syndicate, C. C. A., 112 Fed. 44, 46; Cheatham v. Edgefield Mfg. Co., 131 Fed. 118.

But see Mulqueen v. Schlichter Jute Cordage Co., 108 Fed. 931; Highland Boy G. Min. Co. v. Strickley, C. C. A., 116 Fed. 852.

14 U. S. v. Rosenthal, 210 Fed. 555; gee Wellman v. Bethea, C. C. A., 228 Fed. 882, an action at law for a personal injury. Held that it was no objection to a release, offered in evidence by the defendant, that the plaintiff did not know when he signed it, that it was a general release, or that he had sustained any physical injury, there being no proof of fraud, misrepresentation or mental incompetency at the time of its execution. Simpson v. Pennsylvania R. Co., C. C. A., 159 Fed. 423.

But see Great Northern Ry. Co. v. Reid, C. C. A., 9th Ct., 245 Fed. 86, infra.

15 Holbrook, Cabot & Rollins Corp. v. Sperling, C. C. A., 239 Fed. 715.

16 Union Pac. Ry. Co. v. Harris, C. C. A., 63 Fed. 800; Drobney v. Lukens Iron & Steel Co., C. C. A., 204 Fed., 11; Standard Portland Cement Co. v. Evans, C. C. A., 205 Fed. 1; Cline v. Southern Ry. Co., 231 Fed. 238.

17 Standard Portland Cement Co. v. Evans, C. C. A., 205 Fed. 1.

18 Ibid, Union Pac. Ry. Co. v. Harris, 158 U. S. 326, 15 Sup. Ct. 843, 39 L. ed. 1003.

19 Wagner v. National License Co., C. C. A., 90 Fed. 395; Such v. Bank of State of N. Y., 127 Fed. 450; American Sign Co. v. ElectroLens Sign Co., 211 Fed. 196; Columbia-Knickerbocker Trust Co. v. Abbot, C. C. A., 247 Fed. 833; Levi v. Mathews, C. C. A., 145 Fed. 152; Contra, Maine N. W. Developinent Co. v. Northern Commercial Co., 213

before the statute it could only be set 'aside in a suit in equity, 20 unless the plaintiff was deceived as to the contents of the paper which he executed, so that it was not in fact his deed.21

It has been held that a general release of personal injuries resulting from an accident does not cover an injury, such as hernia, not in contemplation of the parties and then unknown to each.22

Ordinarily, a contract could not be attacked at law for fraud unless the plaintiff first returned or tendered upon the trial, the money received as the consideration for its execution ; 23 except in cases where it was conceded or indisputably proved, that he was entitled to as much as he had received. 24 It has been held that this rule does not apply where the fraud consisted in a misrepresentation as to the nature of the paper executed.26 A tender upon the trial is in any event sufficient.26 In equity an

Fed: 103. See Hartshorn v. Day, 19 How. 211, 222, 15 L. ed. 605; Ivinson v. Hutton, 98 U. S. 79, 25 L. ed. 66; George v. Tate, 102 U. S. 564, 570, 26 L. ed. 232; Shampeau V. Lumber Co., 42 Fed. 760; Johnson v. Granite Co., 53 Fed. 569; Vandervelden v. Railroad Co., 61 Fed. 54; Kosztelnik v. Iron Co., 91 Fed. 606; Hill v. Northern Pac: Ry. Co., C. C. A., 113 Fed. 914, 917.

20 Whitcomb v. Shultz, C. C. A., 222 Fed. 268; Union Pac. R. Co.. v. Syas, C. C. A., 246 Fed. 561; Miller v. Williams, 258 Fed. 216. Contra dicta in Wagner v. National License Co., C. C. A., 90 Fed. 395; Maine N. W. Development Co. v. Northern Commercial Co., 213 Fed. 103.

21 Maine N. W. Development Co. v. Northern Commercial Co., 213 Fed. 103, 104. But see Standard Portland Cement Corporation Evans, C. C. A., 205 Fed. 1.

22 Great Northern Ry. Co. v. Reid, C. C. A., 245 Fed. 86.

23 Hill v. Northern Pac. Ry. Co.,

C. C. A., 113 Fed. 914; Price v. ,
Connors, C. C. A., 146. Fed. 503;
Heck v. Missouri Pac. Ry. Co., 147
Fed. 775; North Chicago St. Ry. Co.
v. Chicago Union Traction Co., 150
Fed. 612; Cook v. Fidelity & De-
posit Co., C. C. A., 167 Fed. 95;
Mahr v. Union Pac. Ry. Co., C. C.
A., 170 Fed. 699; Standard Port-
land Cement Co. v. Evans, C. C. A.,
205 Fed. 1; Maine N. W. Develop-
ment Co. v. Northern Commercial
Co., 213 Fed. 103; Columbia Digger
Co. v. Rector, 215 Fed. 619.

24 Billings v. Aspen Mining & Šmelting Co., C. C. A., 51 Fed. 338, 350; App. Div. (N. Y.) 286; Johnson v. Chicago M. & St. P. Ry. Co., 224 Fed. 196, 199.

25 Muller v. Old Colony R. R. Co., 127 Mass. 86; Cleary v. Municipal El. L. Co., 47 N. Y. State Rep. 172, aff 'd 139 N. Y. 613; Herman v. Fitzgibbons Boiler Co., 136 App. Div. (N. Y.) 286.

26 Yuharsze v. Carnegie Steel Co., C. C. A., 2nd Ct., June 8, 1915, in which the author was counsel.

offer to return the money was all that was required, 27 and where the return was impossible, a provision for its credit to the defendant might be made in the final decree.28 Where the fraud consisted in the conduct of an officer of a corporation in inducing its execution of a contract, in which he was interested, it was held that the contract was illegal as against public policy, and that such a defense was available at law.29 When by contract, payments were to be made upon the certificates of an architect or engineer the better opinion was, before the statute, that such certificates could be attacked for fraud by a defense to an action at common law.30 They could not be attacked for a mistake except in equity:31 The defense of failure of consideration,82 subrogation ; 88 non-assignability, 34 and it has been held champerty 35 could be pleaded at law.

§ 454h. Counterclaims and set-offs. Set-offs and counterclaims should be pleaded in accordance with the State practice.

An equitable set-off can now be pleaded in an action at common law under the statute previously quoted.2 Before this enactment, the pleading of an equitable set-off was not allowed at common law; 3 but where the State practice so permitted, the

27 Allerton v. Allerton, 50 N. Y. 670; Gould v. Cayuga County Nat. Bank, 86 N. Y. 75, 83, supra, 8 153.

28 Thackrah v. Haas, 119 U. S. 499, 7 Sup. Ct. 311, 30 L. ed. 486.

29 Maine N. W. & Dev, Co. v. Northern Commercial Co., 213 Fed. 103.

30 Louisville-Evansville & C. Ry. Co. v. S. P. Meyer, U. S., C. C. D. Ky., per Barr, J.: aff'd by divided court 30 L. ed. 689, which contains the opinion below; Chism v. Chiffer, 51 N. J. Law 1; Baltimore & O. Ry. Co. v. Polly Woods Co., 14 Grattan (Va.) 448; School District v. Randall, 5 Nebraska 408, 410. Contra, Wood v. Chicago, S. F. & C. Ry. Co., 39 Fed. 52; Cook v. Foley, C. C. A., 8th Ct., 152 Fed. 41, 51; Herrick v. Belknap & Vt.

C. R. Co., 27 Vt. 673. See South Eastern Ry. Co. v. Warton, 2 Foster & Finlayson, 457, 464.

31 Newlan v. Duncan, 60 III. 233.

32 Am. Sign Co. v. Electro-Lens Sign Co., 211 Fed. 196.

33 Platte Valley C. Co. v. Bosserman-Gates Live S. & L. Co., C. C. A., 202 Fed. 692.

34 General Film Co. v. Sampliner, 6th Cir., C. C. A., 252 Fed. 443.

36 Ibid. But see Byrne v. Kansas City Ft. 8. & M. Ry. Co., 55 Fed. 44.

$ 454h. 1 Act of March 3, 1915, 38 St. at L. 956 Comp. St. $ 1251b quoted supra, $ 454g.

21. & St. L. R. Co. v. Horst, 93 U. S. 291, 301, 23 L. ed. 898, 901; Phelps v. Oaks, 117 U. S. 236, 239.

3 Scott v. Armstrong, 146 U. S. 499, 36 L. ed. 1059.

defendant might plead as a set-off or counterclaim a cause of action at common law against the plaintiff, and obtain a favorable judgment for such excess as he could prove. In an action by the United States the defendant could not recover an affirmative judgment against the government on a counterclaim, although it may be determined that there is a balance due him.5

An allegation of citizenship or residence of either party contained in a plea of set-off may be taken as an admission.6

A plea of set-off which is defective in form, or which lacks an affidavit 8 may be cured by an amendment.

8 454i. Pleadings in negligence cases. In action to recover damages for negligence when the plaintiff does not rely upon a Federal statute the State pleadings should follow the State practice 1 except as regards the allegations which show the Federal jurisdiction. When an act by the defendant, injurious to the plaintiff is set forth, a general allegation of negligence is sufficient ; 3 but when the negligence is specified the plaintiff cannot without amending his pleading recover upon any other

ground 4 even it has been held under the presumption of res ipsa ·loquitor.5

It has been held: that the defense of contributory negligence must be pleaded if the State statute requires this ; 6 that, where there is a mere general averment upon the subject, a motion to make the same more specific or definite and certain will be

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4 Partridge v. Felix, Mut. L. I. Co., 15 Wall. 573, 21 L. ed. 229; Dushane v. Benedict, 120 U. S. 630, 30 L. ed. 810; Charnley v. Sibley, C. C. A., 73 Fed. 980; Arkwright Mills v. Aultman & Taylor Machinery Co., 128 Fed. 195; Allegheny Valley Brick Co. v. C. W. Raymond Co., 219 Fed. 477. Contra, Jewett Car Co. v. Kirkpatrick, 107 Fed. 622.

6 U. S. v. Gillies, 144 Fed. 991.

6 Kawin & Co. v. American Colortype Co., C. C. A., 243 Fed. 317.

7 Bedford v. J. Henry Miller, ('. (. A., 212 Fed. 368.

8 Ibid.

$ 454i. 1 Gadonnex

New Orleans Ry. Co., 128 Fed. 805; Hardy v. Chicago St. P. M. & 0. Ry. Co., 172 Fed. 454; Patterson v. Jacksonville Traction Co., C. C. A., 213 Fed. 289.

2 Supra, $ 454d.

3 Tatum v. Louisville & N. R. Co., C. C. A., 253 Fed. 888.

4 White v. Chicago G. W. R. Co., C. C. A., 246 Fed. 427.

5 Ibid.

6 Gadonnex V. New Orleans Ry. Co., 128 Fed. 805, 806; Hardy v. Chicago, St. P., M. & 0. Ry. Co., 172 Fed. 454.

to any

granted, when the State practice permits such motions as matter of special defense;? but that where the common law prevails, such a defense may be proved under the plea of the general issue.8

When the acts or omissions constituting the contributory neg. ligence are specified by the defendant he cannot defeat the plaintiff because of any other carelessness.'

$ 454j. Pleading in actions under Federal Employers' Liability Act. A suit arises under the Federal Employers' Liability Act? where the complaint alleges and the proof establishes that the employee was engaged in interstate commerce when the injury occurred and that the occurrence was in the course thereof.2 A concession that the parties were engaged in interstate commerce at the time of the injury cannot give the court jurisdiction where the evidence shows the contrary.3 In such a case, the allegations concerning interstate commerce should be stricken out.4 In an action for the death of an employee of a railway company who was struck by an engine an allegation that the employer was engaged in interstate commerce at the time of the action does not sufficiently show that the engine was then so engaged."

The complaint may be so drawn as to permit the plaintiff to recover under either the Federal or the State Liability Acts or under the common law as supplemented by other statutes of the State, whichever the evidence may permit. A complaint or declaration which refers to a State statute may by amendment bring the case within the Federal Employers' Liability Act when the allegations of negligence are the same.7 A previous action

7 Gadonnex v. New Orleans Ry. Co., 128 Fed. 805. : 8 Canadian Pac. Ry. Co. v. Clark, C. C. A., 73 Fed. 76, 81; C. C. A., 74 Fed. 362.

9 American Car & Foundry Co. v. Uss., 211 Fed. 862.

$ 454). 1 Act of April 22, 1908, ch. 149, 35 St. at L. 65, Comp. St. $$ 8657-8665; Central Vermont Ry. Co. v. White, 238 U. S. 577.

2 Grand Trunk Western Ry. Co. v. Lindsay, 233 U. S. 42.

3 Delaware, L. & W. R. Co. v.. Yurkonis, 220 Fed. 429.

4 Delaware, L. & W. R. Co.,v. Yurkonis, 220 Fed. 429.

5 Illinois Central R. Co. v. Rogers, C. C. A., 221 Fed. 52.

6 Delaware, L. & W. R. Co. v. Yurkonis, 220 Fed. 429.

7 Mo. K. & T. Ry. Co. v. Wulf, 260 U. S. 570; Seaboard Airline Ry. v. Koennecke, 239 U. S. 352; Seaboard Airline Ry. v. Renn, 241 U. S. 290; Smith Atlantic ('oast

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