James Muldoon et al., Respondents, v. Wilson H. Blackwell, et al., Appellants

James Muldoon et al., Respondents, v. Wilson H. Blackwell, et al., Appellants. It is too late for a defendant to claim for the first time, on appeal to this court, that his answer contains a counter-claim which is admitted by not being replied to. It should be insisted upon and the attention of the court or referee called to it on trial, and if not allowed an exception should be taken. (Submitted January 24, 1881; decided February 8,1881.) This action was brought to recover for work arid materials. The answer alleged that the work wás done and materials furnished under a special contract, which plaintiffs failed to perform, and alleged damages to a sum specified for the failure to. perform. No reply was served. It was urged upon the appeal that the answer contained a counter-claim, which, by not being replied to, was admitted. The court say in reference thereto : “ The answer is somewhat equivocal, and it is not entirely certain that the defendants intended by their allegations to set up a counter-claim. But whether they did or not, it is not now available to them. They did not claim at the trial that any counter-claim was admitted. The case was tried and decided as depending entirely upon the evidence given by the plaintiffs. If the claim had been made that a counter-claim was set up in the answer, the plaintiffs might have moved the court for leave to serve a reply, or have shown that a reply was in some way waived. The attention of the referee should have been called to the alleged counter-claim,' and it should have been insisted on at the trial, and if not allowed, an exception should have been taken. It is too late for the defendants now for the first time, so far as appears in the case, to claim that their answer contains a counter-claim, which is admitted.” W. T. Birdsall for appellants. J. A. Shoudy for respondents. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance. All concur. Judgment affirmed.