To Greene's bill to redeem, and claiming that on a fair settlement there would be a balance due him, Harris put in a plea of stated accounts. To meet this anticipated plea, Greene had in his bill alleged that Harris had agreed to pay for the work certain prices, being one eighth of one cent per yard more than was paid by Slater to Saunders; and that Harris named to Greene certain prices as these prices, but which were less, and thus Greene was led to render the accounts at the prices he did, — Harris contending, on the other hand, that the agreement was to do the work for the prices named, and had no reference whatever to the prices paid to Saunders.
On argument it was held (April 6, 1874), that the plea was insufficient, inasmuch as it did not contain averments negativing these allegations in the bill.
Harris has amended his plea by adding an averment, denying that he ever agreed, or stated, that the prices named by him were, and should be, one eighth of one cent per yard more than Saunders was receiving, and also denying that he knew, until the bill was filed, what Saunders's prices were.
This plea was set down for argument, and the parties were heard at Providence, June 12, 1875. Is it sufficient? We think it is.
The object of the plea is to reduce the matters in dispute to definite issues. The parties differ as to what the contract was. The bill alleges the contract as claimed by the complainant, and admitting the rendering of accounts, asks to correct them. The respondent pleads stated accounts rendered upon the contract as *Page 16 he claims it was, and denies the contract and mistake or fraud alleged in the bill.
The respondent must of course make out his defence, and show that the accounts he pleads come up to the description of stated accounts. The allegation of a different contract, and that the accounts were rendered by mistake or fraud, is in the nature of a replication, and the burden to prove them is on the complainant. The respondent, by denying them, merely puts them in issue. Story Eq. Pl. § 676; Lube Eq. Pl. p. 251 (2d Amer. ed. N.Y. 1846). The complainant objects that the plea is bad and insufficient, because: —
1. It sets up no fact outside of the bill. A plea of this nature is an anomalous plea, and cannot well set up anything not in the bill, the bill having in fact anticipated the defence. Story Eq. Pl. §§ 651, 667, 676, 802; Lube Eq. Pl. pp. 246-9; Judge McLean in R.I. v. Mass. 14 Pet. 210, 269; Adams's Equity, *338.
2. That it does not deny certain other allegations in the bill, viz.: —
a. The allegations of trust and confidence, and the agreement for mutual benefit. These seem to us to be rather matters to be offered in evidence as having some bearing, more or less, on the question whether any such contract was made than as matter for independent issues.
b. The allegation that Harris told Greene that the prices he named were necessary to enable him to make a profit.
d. That the accounts rendered were not intended as final. In pleading the accounts, as stated, it is implied that they were final.
e. That the prices Harris named were less than the Saunders prices. The same remark applies to these allegations. If the contract is proved as alleged by Greene, it will then become important to ascertain what these Saunders prices were.
f. Harris's acquiescence in Greene's alleged claim that the accounts were not made out as they should be. This, also, is involved in the question of their being stated accounts, and in the question of whether the contract is proved as alleged by him.
g. That Harris made a great profit, and Greene nothing. If a contract is proved to pay certain prices, this is immaterial.
As a general remark, these objections relate to matters which *Page 17 might properly be offered in evidence as affecting the probability whether a contract was ever made as alleged by Greene; and whether, if made, it was changed or waived; and whether the accounts rendered can properly be considered as stated accounts.
Human nature constitutes a part of the evidence in every case. We more easily believe that a person has done what we should have expected under the circumstances; and we require a greater degree of evidence to satisfy us that a person has done something which would be unnatural or improbable. So these facts, if they are facts, may be the basis of argument in favor of the complainant's allegations.
And our impression is that these allegations are denied in the answer, which is the proper place for denial of all matters of detail tending, if true, to prove the main issue made in the plea.
c. The complainant also objects to the plea that it contains no averment denying that Harris told Greene that he, Harris, knew the Saunders prices. Harris does in his plea deny that he knew the Saunders prices until the bill was filed.
It will be recollected that in the beginning of this suit the bill was considered by the court, and so argued by counsel for complainant, as intending to charge fraud in inducing the contract.
On this view the allegation that Harris knew the Saunders prices was material and necessary to constitute fraud on the part of Harris, as otherwise it would be mere mistake.
On this view the court decided, on a former hearing, that the knowledge on the part of Harris must be alleged positively, and not merely by way of stating that he had admitted it to some person.
Subsequently (February 15, 1873), the court decided that they would thereafter consider the bill as founded on contract to pay certain prices, and that in consequence of the representations of the defendant the accounts were made up on a basis different from the prices contracted for. And thus the bill now stands.
Order allowing plea entered July 26, 1875.
After the foregoing opinion the respondent Harris asked for *Page 18 a decree amending and supplementing the decree of July 15, 1873,10 R.I. 393, and specifying the portions of the bill eliminated by that decree.