delivered the opinion of the Court:
This was indebitatus assumpsit by appellee against appellant, in the Fayette county circuit court, upon the common counts, which were five in number, each claiming the sum of $500.
The only plea filed by the appellant was as follows:
“And the said defendant says aetio non as to $300 of the said plaintiff’s demand, because it says the said several causes of action in said declaration sued for are for one and the same thing, to wit: The said railroad ties alleged to have been sold by plaintiff to said defendant, and defendant avers that of said ties so demanded, a large number, to wit: 500 of them, were, by some person or persons whose names are to defendant unknown (without the license or consent of defendant, or defendant’s trustees, or of any other person having lawful authority to authorize the same,) cut and felled and removed from sec. No. 32, T. 6 N., R. 1 E., 3d P. M., in said Fayette county, said land being a part of the land granted to the defendant by the charter thereof, and said land being and remaining unsold, and the defendant, after having received said ties being for the first time apprised of the facts aforesaid, did refuse, as defendant well might, to pay .the said plaintiff for the said 500 ties so unlawfully taken from the land aforesaid. And this the said defendant is ready to verify, &c.”
To this plea a demurrer was interposed, which the court sustained. ' The sufficiency of the plea is the only question in the case. We think the plea was bad, and that the demurrer to it was properly sustained.
The counsel for ajopellant insists that the plea contains matter of recoupment, and is sufficient. The right to recoupe, he says, is based upon the implied Avarranty of title.
Does the plea aver a Avarranty in terms, or does it state facts from which, even under the rule of the minor degree of certainty, viz: certainty to a common intent, .in pleading, from which such Avarranty can be implied ? That there is any averment of Avarranty, is not pretended, and it is equally clear that there are not sufficient facts stated from which one can be implied.
Parsons, after speaking of the somewhat uncertain and conflicting character of the English authorities, says: “ And in this country it seems to be noAv well settled by adjudications in many of our States, that the seller of a chattel, if in possession, Avarrants by implication that it is his own, and is anSAverable to the purchaser, if it be taken from him by one Avho has a better title than the seller, Avhether the seller kneAv the defect of liis title or not, and Avhether he did or did not make a distinct affirmation of his title. But if the seller is out of possession, and no affirmation of title is made,- then it may be said that the purchaser buys at his peril.” 1 Parsons on Con. 573-4.
There is no averment in the plea of possession in the appellee at the time of sale, or of any affirmation of title, and it is not pretended that enough is averred upon which to base a claim for damages on the ground of deceit practiced by appellee in the sale.
But even if there were a distinct averment of warranty of title, the plea would still be bad.
“It is a rule,” says Chitty, “that every plea must answer the whole declaration or count, or rather all that it assumes in the introductory part to answer, and no more.” 1 Chit, on •PI. 523.
This plea assumes to answer $300 of the plaintiff’s demand. In order to be good, under the rule just referred to, it must show a defense to that amount. In Harpham v. Haynes, 30 Ills. 404, the court say: “Now the' plea proposes to ansAver $125 of the first count, but it actually ansAvers but $109.80 of it. Is the plea bad-for that reason? We think it is. A plea must ansAver all it professes to answer. The most common and familiar case is, where a plea professes to ansAver the whole of a declaration or count, and actually ansAvers but a part. In such case no one Avould doubt that the plea would be bad. The principle is the same here. In the supposed case the plea claims to ansAver more than the facts stated in it can answer, and so(it is in the principal case. We think the demurrer Avas properly sustained to the second special plea.”
There is no averment in the plea as to the value of the five hundred railroad ties, and therefore, unless the court can take judicial notice that five hundred railroad ties'were Avorth $300, the plea fails to ansAver all it assumes to answer.
The judgment of the court below is affirmed.
Judgment affirmed.