
    James W. Mudgett, Plaintiff, v. Grand Trunk Railway of Canada, Defendant.
    (Supreme Court, Cattaraugus Special Term,
    December, 1909.)
    Estoppel — Equitable estoppel and estoppel in pais — Facts creating estoppels — Claim or position in judicial proceedings or actions. Heading — Motions relating to pleadings: Motion to strike out pleading or defense — Sham answer — Affirmative defenses: Motion for judgment on the pleadings — Frivolous pleadings — Denials.
    Where, in an action against the Grand Trunk Railway of Canada for injury to potatoes by delay in transportation, the defendant was ordered to deliver to the plaintiff copies of books and papers showing when and where it received the potatoes, and pursuant thereto it served affidavits and papers showing that the potatoes were delivered to the “ Grand Trunk Railway ” at a certain date, the plaintiff has a right to rely upon such delivery having been made to the defendant and not to a railway system neither controlled nor operated by the defendant.
    A general denial in such a ease cannot be stricken out as frivolous when it may be material upon the issue whether the potatoes were injured by the delay.
    Defendant’s affirmative defense containing matters that appear to be true, though in conflict with its previous statements furnished by order of the court, may'not be stricken out as sham, though the defendant may be estopped from denying the truth of such statements.
    Motion by plaintiff to strike out defendant’s answer as sham and frivolous.
    A. M. Laidlaw, for motion.
    Moot, Sprague, Brownell & Marcy, opposed.
   Brown, J.

This action was commenced by the service of a summons on March 29, 1909. On April 19, 1909, the defendant’s attorneys served a notice of retainer and demanded a copy of the plaintiff’s complaint. On June 4, 1909, an order was granted directing the defendant to deliver to plaintiff’s attorney, within twenty days, sworn copies of that portion of any hooks, papers or accounts in its possession or under its control which shows when and where the defendant received the car of potatoes, and to whom and when and where the defendant delivered the same to any other railroad company. In pursuance of this order the defendant’s attorneys, on July 19, 1909, served upon the plaintiff’s attorney affidavits and papers showing that the car of potatoes was received by the Grand Trunk Railway on the 19th day of Rovember, 1904, at Pontiac, Mich., for shipment to Buffalo, N. Y.; and that the Grand Trunk Railway Company delivered said shipment to the Buffalo, Rochester and Pittsburgh Railroad Company, at Buffalo, R. Y., on December 1, 1904, for shipment to Imlay, Penn. Upon receipt of this information, and on August 6, 1909, the plaintiff’s attorney prepared and served the complaint, alleging the receipt by defendant of the potatoes, at Pontiac, Mich., on Rovember 19, 1904, and the delivery of such shipment to the Buffalo, Rochester and Pittsburgh Railroad Company, at Buffalo, N. Y., on December 1, 1904, and that, by reason of the delay of such shipment by defendant, the potatoes were destroyed, etc.

On August 27, 1909, the defendant’s attorneys served an answer in which the defendant denies each and every allegation of the complaint, except defendant’s incorporation, and sets up as an affirmative defense that the shipment was received by the defendant at Sarnia, Ont., on Rovember 24, 1904, and transported to Buffalo, where it was delivered by defendant to the Buffalo, Rochester and Pittsburgh Railroad Company on December 1, 1904.

The plaintiff moves to strike out these answers as frivol- , ous and sham, and for judgment; asserting that, because the defendant furnished information that it had received the potatoes at Pontiac, Mich., on Rovember 19, 1904, a denial of the allegation that such was the fact is frivolous, and that an affirmative answer, alleging the receipt of the potatoes at Sarnia, Ont., on Rovember 24, 1904, is sham and false.

The defendant insists that the information furnished in compliance with the order directing defendant to furnish the time and place of delivery to defendant does not in fact state that the potatoes were delivered to defendant Grand Trunk Railway of Canada, at Pontiac, Mich., on November 19, 1904; and that stating delivery to the Grand Trunk Railway does not state a delivery to defendant. This is technically correct. The fact appears to be that the potatoes were delivered to the Detroit, Grand Haven and Michigan Railroad Company, at Pontiac, the last named railroad being a part of a system known as the Grand Trunk Railway System, but not controlled or operated by the defendant; that the last freight agent of the Grand Trunk System, located at Montreal, in furnishing the information called for by the order of June 4, 1909, made a mistake in supposing that the desired information referred to the delivery of the potatoes to the Grand Trunk System, instead of to the delivery to the Grand Trunk Railway of Canada.

The defendant was directed and ordered to furnish plaintiff with a statement of the time and place of the delivery to it of the shipment; and, when the defendant said that the shipment was delivered on November 19, 1904; to the Grand Trunk Railway, at Pontiac, Mich., the plaintiff had a right to rely thereon, as being a fact beyond dispute, that the shipment was made to the defendant at that time and place.

The defense of general denial cannot be stricken out as frivolous, for the reason that, upon the issue as to whether the potatoes were injured by the delay in transportation, such general denial is not frivolous. The affirmative defense cannot be stricken out as sham, for, in fact, the matters therein contained appear to be true. The defendant, having furnished erroneous information in response to the order of the court, may be estopped from denying the truth of the information, yet such fact does not render the affirmative defense sham or false. The real truth of the matter is that the defendant has failed to comply with the order requiring it to furnish certain data to plaintiff. The information which it did furnish was erroneous. The defendant should comply with the terms of that order, and the plaintiff should be restored to the same situation that existed at the time he received the erroneous information.

An order may be entered directing the defendant to furnish to the plaintiff within ten days the information required by the order of June 4, 1909, and that defendant pay to plaintiff all costs that have accrued since the service of the summons, including term fee for the present term.

Ordered accordingly.  