The opinion
Denied April 25, 1922.
On Petition eor Beheading.
(206 Pao. 208.)
Beheading Denied.
O. F. McKnight, for the petition.
William T. Stoll, contra.
Department 1.
BUBNETT, C. J.
— In an earnest argument in support of their petition for rehearing, counsel for defendant criticise the language of. the former opinion in it saying that the motion for nonsuit was improperly allowed. The basis of this contention is that it is *665 not expressly stated in the bill of exceptions that the plaintiff excepted to the ruling of the court on a motion for nonsuit and hence that question was not before us for decision. It is perhaps enough to say that the opinion was grounded mainly, if not entirely, upon the insufficiency of the answer filed by the defendants.
14. Adverting to the pleadings, we find a declaration upon a promissory note, which is set out in full in the complaint, together with appropriate allegations of its execution, failure to pay and demand for judgment. The denial in the answer referring to the complaint is stated thus:
“Deny every allegation, statement, matter and-thing contained and alleged therein except as hereinafter specifically stated, admitted or qualified.”
If that which is thereinafter “specifically stated, admitted or qualified” shows that the answer does not constitute a defense, the plaintiffs must prevail, for it is manifest they have a sufficient complaint on the promissory note.
The defendants say in their answer that the parties entered a contract of which the alleged note was a part, clearly admitting the actual execution of the note. They also say that the plaintiffs were to ship-to said defendants certain merchandise enumerated and agreed upon. It is true they state further and finally “that the plaintiffs have wholly failed, neglected and refused to perform the terms of said contract on their part to be kept and performed.” At the same time and earlier in the same pleading they say that “prior to the commencement of said action these defendants offered to return said merchandise.”
15. Considering that part of the contract as stated in the answer was that the plaintiffs should ship the *666 merchandise, the defendants’ averment that the plaintiffs had “wholly” failed to perform is rendered sham by the statement that the defendants had offered to return the same merchandise. In other words, construing the pleading most strongly against the pleader, as properly may be done on demurrer, it contains an admission of the note and of performance of the contract at least in part by delivering the goods. Besides this, the defendants do not allege performance on their part of what they say were mutual covenants and dependent conditions. These reasons apparent on the face of the pleadings are enough to render erroneous the judgment of nonsuit, for we have an admitted note and an answer which does not state any reason why the same should not be paid. The petition for rehearing is denied.
Rehearing Denied.
McBride, Harris and Rand, JJ., concur.