whereby he promised to pay said, or order, the sum of $90, three months from the date thereof; and said thereupon, and before the commencement of this action, endorsed said note to the plaintiff, That said note became due before the commencement of this action, and no part thereof has been paid. And the plaintiff claims to set-off the amount thereof, and interest, against the claim of the defendant, alleged in his said answer, and he demands judgment for the sum, specified in said complaint, besides costs. R. A. & F. J. PARMENTER, (No. 4.) Reply to two separate counter-claims in the same answer; payment as to the first, and usury as to the second.1 Title of the Cause. The plaintiff, in reply to the separate counter-claims set forth in the defendant's answer, alleges: First. As to the first counter-claim set forth in said answer, that on the - day of, the said defendant, being indebted to the said plaintiff in the same sum of money mentioned in said counter-claim, for goods and merchandise before that time sold and delivered by the plaintiff to the defendant, agreed with the plaintiff to apply said sum on the said indebtedness, in full payment and satisfaction thereof. Second. As to said counter-claim, secondly set forth in said answer, the plaintiff further alleges, that on the day of the day when said note was made and delivered to the defendant, the said plaintiff being desirous of loaning of the defendant the sum mentioned in said note, 1 To Answer No. 63, Part IV., ante, p. 649. the said defendant corruptly and usuriously agreed to loan said plaintiff the sum of money mentioned in said note, and to forbear and give day of payment for the same for the full period of months, mentioned in said note, in consideration that he, the plaintiff, should pay the said defendant the sum of $- over and above the said sum loaned and mentioned in said note. That said plaintiff did thereupon pay said defendant the said sum of $, receiving from him at the same time the amount actually loaned and mentioned in said note, and at the same time executed to said defendant said note for the payment of said loan. And the plaintiff alleges, that said sum of $, so agreed to be given and paid by said plaintiff for such loan and forbearance to said defendant, exceeds the rate of 7 per cent per annum by the sum of $, contrary to the statute in such case provided. (No. 5.) Reply, specific denials and counter-statements to an answer by way of counter-claim, which sets up a mistake in and seeks to reform a contract, in an action brought for specific performance.1 Title of the Cause. The plaintiff, in reply to the answer of the defendant, set up by way of counter-claim in this action: First. Denies, that at the time of the negotiation for the sale of said premises, the existence of the mortgage referred to in said complaint was mentioned by said defendant to said plaintiff, or that it was understood or agreed between them that the price to be paid for said premises 1 To Answer No. 64, Part IV., ante, p. 651. was over and above the amount of said mortgage, or that said premises were to be conveyed free and clear from all incumbrances except said mortgage, or that it was mutually agreed between said parties that said contract was to be so drawn. And as to each and every other allegation contained in said complaint, except the allegation that there is an outstanding mortgage upon said premises executed by one A. B., the defendant's grantor, to one B. G., and the further allegation that defendant did at the time of the tender of the money, as mentioned in said complaint, offer to give the plaintiff a warranty deed with full covenants, except as against said mortgage, which plaintiff refused, the said plaintiff has no knowledge or information thereof sufficient to form a belief. Second. And for a further reply to said answer, the plaintiff says, that after the said negotiations were completed, except the actual execution of said agreement, and just before the execution thereof, the said defendant mentioned to said plaintiff the fact that there was an outstanding mortgage upon said premises, of the amount, and executed and held by the parties, as in said complaint stated; but that said A. B., the mortgagor, had covenanted and agreed with the said defendant to assume the payment of said mortgage, and to pay the same before the time fixed for the execution of said conveyance, that is to say, on the day of and that said mortgage would undoubtedly be paid, and that he, the said defendant, would see that the same was duly discharged and canceled of record, so that he would be able to convey a full and perfect title in said premises to the defendant. And the plaintiff avers, that said contract was drawn up and executed in all respects as he, the said plaintiff, understood the true intent and agreement of the parties. Wherefore he prays that the court will grant him the relief demanded in his said complaint. S. & V. S., Plaintiff's Attorneys. (No. 6.) Reply to separate counter-claim set up by a landlord, admitted to defend in an action brought against his tenant to recover real estate; the counter-claim alleging a mistake in the deed of conveyance of the premises, and praying, as affirmative relief, that it be corrected.1 Title of the Cause. The plaintiff, in reply to the separate answer of the defendant, J. D., secondly by him set forth by way of counter-claim to the plaintiff's complaint: First. Denies that at the time of said sale, or at any other time, it was agreed or understood, between the plaintiff and said defendant, that the premises so sold and conveyed were bounded and described as in said answer alleged, or that they included or were intended to include the premises to recover which this action is brought. And as to the allegations respecting the alleged mistake set forth in said answer, and the entry of the said defendant, J. D., into possession of said premises, and the leasing of the same to said defendant, A. B., and his possession thereof as tenant of said defendant, J. D., the plaintiff has no knowledge or information sufficient to form a belief. Second. And for a second and further reply to said separate answer of said defendant, secondly by him set forth, 1 To answer No. 65, Part IV., p. 655. the plaintiff alleges that by the terms of the said agreement, made by and between him and the said defendant in relation to the quantity and description of the land so sold and conveyed by plaintiff to defendant, it was distinctly agreed and understood that said plaintiff was to convey to said defendant only fifty acres of land, strict measure; and although it was supposed at the time that said fifty acres would embrace and include the whole of the tract now claimed by said defendant, yet it was further agreed and understood that the same should be surveyed, before the execution of said conveyance, by L. D. E., a surveyor mutually agreed upon between the parties, and that his measurement and description of said fifty acres should be adopted and inserted in the conveyance. And the plaintiff alleges that said surveyor did, subsequent to said agreement and before said conveyance, make such survey and furnish to plaintiff a description thereof, and that the same is the identical description inserted in said deed and the lands so described are the lands conveyed to said defendant, and that such description does not include the lands mentioned in said complaint, and to recover the possession of which this action is brought. Wherefore the plaintiff claims and insists that he is entitled to the relief demanded by him in his said complaint.1 1 The foregoing precedents are sufficient to show the general form and nature of the reply to defendant's counter-claim, and it is not deemed necessary to multiply them. The counter-claim being substantially the same, and set forth in the same manner, as an independent cause of action in a complaint, the reply will, of course, be in all respects similar to an answer, and be governed by similar rules. (See Pleadings, pp. 628-640.) |