concurring:
5. We concur in the order of reversal. The so-called affirmative defense falls within the class controlled by the rule that a mere statement of facts in an answer by way of defense, which is inconsistent with the facts alleged in the complaint, is, in effect, nothing more than a denial of the allegations of the complaint.
*427The logic of the opinion of the court in Wade v. Stever, 166 N. Y. 251, 59 N. E. 825, seems unanswerable. See, also, Bliss, Code Pl. (2d ed.) 333; Sylvis v. Sylvis, 11 Colo. 318, 17 Pac. 912; Goddard v. Fulton, 21 Cal. 430; Mott v. Baxter, 29 Colo. 418, 68 Pac. 220.