
    
      LEWIS vs. PEYTAVIN.
    
    East'n District.
    May, 1821.
    A replication admits any new fact set forth in answer, in avoidment of the claim, which it does not deny.
    Appeal from the court of the second district.
   Martin, J.

The plaintiff claims the price of a number of cattle by him sold to the defendant.

The latter pleaded the general issue, and that if he did buy the cattle, he gave, and the plaintiff received, in full payment and satisfaction of it, his promissory note, which he is ready to pay on presentation.

The plaintiff replied that the note given by the defendant is lost, so that he was forced to sue on a quantum meruit.

The district court gave judgment for the plaintiff, being of opinion that it was better the defendant should run the chance of a future loss, than plaintiff should now sustain a present and real one. The defendant appealed.

Livermore for plaintiff, Workman for defendant.

It seems to me the replication admits every new fact set up in avoidance of the claim in the answer, which it does not deny. The defendant having alleged that the note was given and received in satisfaction of the price of the cattle, and the note being admitted to have been given, this last circumstance, its having been given and received in satisfaction and payment, is admitted. If it is, the defendant is suable on the note only, and the contract of sale is fully executed, and can no longer support the vendor’s claim for the price.

I think that the district court erred, and our judgment should be for the defendant.

Mathews, J.

I concur in this opinion.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and that there be judgment for the defendant, with costs in both courts.  