In this action the court below sustained a motion made by the defendant for a nonsuit, for the reason that the plaintiff’s proof had not established the material allegations of the complaint.
This ruling* is assigned as error by the appellants. In determining whether the ruling of the court below was correct, it is necessary to observe what were the issues presented in the pleadings, for these determine what the plaintiffs were required to prove. The complaint is in the form of a common indebitatus count, for goods sold and delivered in a *234declaration in assumpsit at common law, save that no allegation of the promise to pay the amount claimed due is set forth. Under our code system of pleadings, a promise, when it is implied, need not be alleged, for it is not proper under this system to set forth implications of law. A complaint, similar to the one in this action, was held, in Allen and Carpenter v. Patterson, 7 N. Y. 476, to state facts sufficient to constitute a cause of action; and, according to this authority, it may be safely said that this complaint implies clearly that a contract had been made between plaintiffs and defendant, by which the former had sold and delivered to the latter, goods, at his special instance and request, for the price named in the complaint, which the defendant had promised to pay; that the time when the same was to be paid had expired, and that it was now due and unpaid. All that was required of the plaintiffs was to establish these facts. If they are not controverted by the answer they are admitted, and that is sufficient. A promise that is implied from the facts of a case need not be proved, while an express promise has to be both alleged and proved. The promise in this case, as in that of Allen and Carpenter v. Patterson, above referred to, is an implied one. Under our Code, as well as under the common-law system of pleadings, the denials of the answer should not only controvert the express allegations of the complaint, but also those necessarily implied therefrom. Van Santv. Plead. 422, 423.
It was necessary, then, that the defendant should controvert all or some of the allegations above specified. The first denial is simply a denial of indebtedness. This, it lias been frequently held, raises no material issue whatever. The other allegations of the answer do not directly controvert any of the allegations of the complaint, but set forth that the goods were purchased for gold dust. This, of course, infereutially denies that the goods were sold for so much money. It is very difficult to class such an answer as this. It is not a specific denial of the allegations of the complaint, nor does it confess and avoid them, for if it is true, all the allegations of the complaint are not. The allegation in *235relation to the contract being for gold dust, is set forth in the answer, as though it was new matter constituting a defense. The new matter constituting a defense provided for in the Code is, I think, the setting up of such defenses as coverture, infancy, payment, failure of consideration, recoupment and such classes of defenses, amounting to a full or partial defense to the action. This defense sought to be set up in this action is not embraced within any of these classes. It is one that undoubtedly could have been introduced, under a specific denial, denying that the defendant ever contracted to pay the plaintiffs the sum named in their complaint, or any other sum of money, for said goods, wares and merchandise. At the trial, the answer was treated as though it was such a denial as this. Whether a court should consider such an answer a nullity, without any objection on the part of the plaintiff, I am not prepared to say. diving it all the force claimed for it, the only issue raised by it is, as to whether the goods were sold for money or gold dust. All the evidence in the case is positive upon the point that it was for money. The court should, then, have found this fact, which would have decided the cause for the plaintiffs.
The judgment of the court below is therefore reversed, and the cause remanded.
Exceptions sustained.