Defendants in error rely on section 4078, Rev. Laws 1910, (section 7698, Comp. Stat. 1921), which reads as follows:
"Failure of Consideration as Defense. Absence or failure of consideration is matter of defense as against any person not a holder in due course, and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise."
Under this action the matters attempted to be set up in the answer as a defense to the note sued on would be available if they were properly pleaded, but the answer is fatally defective. It sets up two distinct matters, the first being that at the time this suit was brought there were two proceedings pending in the county court of Mayes county to determine the heirs of Ola Houston and Samuel Stop, and that these proceedings were not finally determined until December 9, 1919, after the suit was commenced on September 24, 1919, but before the amended answer was filed, so that the amount of the expenses incurred in these proceedings could have been easily ascertained at the time the amended answer was filed on January 29, 1920, but defendants nowhere state in their amended answer what these expenses were, nor does *Page 112 the answer state any facts by which the court could estimate the expenses. This part of the answer is in the nature of a plea in abatement, and while forms of common-law pleas are abolished by the Code, the substance remains the same. It may be said that the Code is more liberal than the common-law rule, and we are not held to the same strictness required in common-law pleadings, yet there is certainty required under both systems of pleading, and that part of the answer setting up the two administration proceedings to determine the heirs of Ola Houston and Samuel Stop, and alleging that defendants had had to bear the cost and expense of such proceedings, without stating the amount of such expenses, or some amount, rendered that part of the answer bad.
That part of the answer sets up that since the commencement of this suit one Lydia Ballew had brought suit in the district court of Mayes county, where this suit was pending, claiming that she was an heir of Sallie Stop and entitled to an undivided one-third interest in the Sallie Stop allotment, and that said suit was still pending at the time the amended answer was filed, and at the time this suit was tried, and that the defendants had employed counsel to defend said suit and would have to bear the expense of defending said suit, but nowhere states what expenses they have incurred nor what the probable expenses would be. Nor do they state what the value of the one-third interest would be in case Lydia Ballew was successful in her claim. That part of the answer setting up the Lydia Ballew claim is in the nature of a plea puis darrein continuance, which is another form of a plea in abatement to set up matters, occurring after the commencement of the suit, but it is also bad for uncertainty as it pleads no amount that defendants have expended or would be liable to expend, and fixes no value on the interest claimed by Lydia Ballew.
We, therefore, conclude that the demurrer to the answer was properly sustained, and that the judgment of the court below should be in all things affirmed.
By the Court: It is so ordered.