
    John Gaffney vs. St. Paul, Minneapolis & Manitoba Railway Company.
    January 4, 1888.
    ■Pleading — Denial Controlled by Admission. — The admissions in a reply held to control a denial therein, and thus to confess the defence interposed by a supplemental answer.
    
      Same — Reply.—Held, further, that said reply failed to avoid the defensive matter, and that, upon the pleadings, defendant was entitled to judgment.
    Appeal by plaintiff from a judgment of the district court for Hennepin county, where defendant’s motion for judgment upon the pleadings was granted by Young, J.
    
      Welch, Botkin é Welch, for appellant.
    
      Benton & Roberts, for respondent.
   Collins, J.

The plaintiff appeals from a judgment of the district ■court for Hennepin county, made and entered pursuant to an order granting defendant’s motion for judgment upon the pleadings. After the issues in the action were fully made, the defendant, by leave of ■court, served a supplemental answer, setting forth, among other things, ¡that upon a certain day (subsequent to the service of the last pleading) it had settled and adjusted with plaintiff all claims involved in this litigation, had paid him a certain sum of money therefor, and that said plaintiff had made, executed, and delivered his receipt in full settlement of the action. To this plaintiff replied, denying a settlement ■and adjustment of “all his claim” against defendant, and averring that, “save and except in the manner and under the circumstances ■herein set forth,” he had not executed and delivered his receipt for the ¡sum named, in full settlement of the action. Further replying, the ■plaintiff sets forth at length the circumstances under which he made -the settlement, received the sum of money specified, and executed and •delivered the receipt mentioned in the supplemental answer, evidently attempting to plead fraud and deceit on the part of defendant in procuring such alleged settlement, and in obtaining said receipt. If we •can treat the first part of this reply as a denial, — and that is doubtful, because of its peculiar phraseology, — the subsequent admission controls and determines the real issue. Derby v. Gallup, 5 Minn. 85, (119.) See, also, Henry v. Hinman, 21 Minn. 378. The plea is confession and an effort to avoid, wherein it fails; for nearly all elements essential in pleading fraud and deceit are omitted, while some of the allegations in the reply are inconsistent with such a defence to defendant’s averments of settlement and receipting. It is well settled that all matters in confession and avoidance must be affirmatively and specially pleaded. Livingston v. Ives, 35 Minn. 55, (27 N. W. Rep. 74.) And where a plea confesses, but does not sufficiently avoid, judgment must be given upon the confession, even after verdict.. Lough v. Bragg, 18 Minn. 106, (121.)

Judgment affirmed.  