dissenting:
I agree with the majority’s statement of the law to the effect that judgment should not be entered on the pleadings if an issue of fact has been raised. I believe that a very important material issue of fact was raised by defendant’s answer, and, in consequence, I must dissent.
The court proceedings in this case are based upon the proposition that both parties are members of the Chicago Real Estate Board, and, therefore, subject to the arbitration procedures included in its bylaws. If defendant had not been a member of the Board at the time in question, I would presume that the claim, as presented, would fall, but, more importantly, if defendant’s answer raised an issue as to his membership in the Board, then judgment for plaintiff on the pleadings would have been improper. As to this, I believe we are in agreement.
Three sections of the Civil Practice Act bear on onr consideration of the sufficiency of defendant’s answer to raise an issue of fact. As mentioned by the majority, Section 40 requires that an answer contain “an explicit admission or denial of each allegation” of the complaint. Other pertinent sections provide in part:
Pleadings shall be liberally construed with a view to doing substantial justice between the parties. (Sec 33(3).)
If any pleading is insufficient in substance or form the court may order a fuller or more particular statement. If the pleadings do not sufficiently define the issues the court may order other pleadings prepared.
No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet. (Sec 42(1), (2).)
Section 33(2) also provides that a pleading shall be divided into paragraphs and that each paragraph shall contain, as nearly as may be, a separate allegation.
Paragraph 1 of the complaint (quoted in full in the majority opinion) is not limited to one allegation, but contains several, and therefore requires a multiple response in defendant’s answer. Separating the allegations and placing the pertinent part of the answer alongside, the pleadings read as follows:
COMPLAINT
(T)he plaintiff and the defendant at all times hereinafter mentioned were engaged in business as Real Estate Brokers.
(The plaintiff and the defendant at all times hereinafter mentioned) were duly licensed as such Brokers pursuant to Certificates of Registration issued by the Department of Registration and Education of the State of Illinois.
ANSWER
Defendant admits that both the Plaintiff and Defendant were engaged in business as real estate brokers.
(Defendant admits that both Plaintiff and Defendant) were duly licensed as such brokers pursuant to Certificate of Registration issued by the Department of Registration and Education of the State of Illinois.
Thus far, there is no problem. These two allegations are both admitted. This leaves only the one critical allegation which was stated and answered as follows:
COMPLAINT
(The plaintiff and the defendant at all times hereinafter mentioned) were members in good standing of the Chicago Real Estate Board.
ANSWER
Defendant does not know of his own knowledge whether or not the Plaintiff is a member of the Chicago Real Estate Board, therefore neither admits nor denies the same, but demands strict proof thereof. . .. Defendant denies each and every other allegation in said paragraph.
When considered in this form, it is apparent that the only allegation to which the last sentence of the answer applies, is the claim that defendant was a member of the Board. Unless this sentence of the answer is to be disregarded completely, it can only mean that defendant denies the only remaining unanswered allegation of the paragraph. I think that is sufficient.
Under the guideline established by Section 42(2), I believe that defendant’s denial of membership, thus pleaded, “reasonably informs tbe (plaintiff) of the nature of the . . . defense.”
If this type of denial (the last sentence of the paragraph) and the allegation to which it applies were in separate paragraphs, there could be no doubt but what the allegation had been specifically denied, and not admitted. The joining together of the several allegations into one paragraph (contrary to Section 33(2)) was the doing of the plaintiff, not the defendant. If there was a question as to what was admitted and what was denied, then the court (or the court on motion of the plaintiff) could have ordered “a fuller or more particular statement.” (Section 42(1).)
To construe these words of denial as an admission of the allegation basic to the whole proceeding is not, in my opinion, following the direction of the statute that “pleadings should be liberally construed with a view to doing substantial justice between the parties.” (Section 33(3).) This is especially true, since the nature of the court’s action, on this highly technical ground, was to deprive the defendant of a hearing on the merits. It is my belief that in a motion for judgment on the pleadings, the sections of the Practice Act which I have referred to demand the opposite result.
As to paragraph 5 of the complaint, the oblique reference to defendant’s membership would, I am sure, not support the action if it stood by itself, and if the membership allegation of paragraph 1 were to be considered as having been denied, then the answer to paragraph 5 would also be sufficient.
Paragraph 6 of the complaint simply alleges the decision and award of the Board, and does not constitute allegation of all the contents of that award so as to require answer. Defendant’s answer to this paragraph is clearly sufficient.
I would reverse the order of the Superior Court for a trial on the issue of whether or not defendant was a member of the Board at the times in question.