Pleading, Civil, Answer, Waiver of defect in pleadings. Waiver. An amended answer of the defendant in an action of contract upon a promissory note, which alleged that the plaintiff "obtained the defendant's signature to the note by deception and fraud, to wit: — by the false and fraudulent representations" of the plaintiff, was filed by consent of the plaintiff on the same day on which the case was tried, and, at the trial, the presiding judge excluded evidence tending to show the truth of its allegations. Held, that, there having been no objection to the amended answer until the evidence in support of its allegations was offered, the insufficiency as a matter of pleading of the statement of the defence did not warrant the excluding of competent evidence of its truth.
LORING, J.
The statement of the defence set up in the amendment to the answer was insufficient as matter of pleading. But that is not a reason for excluding competent evidence of its truth. Goodsell v. Trumbull, 135 Mass. 99. Tapley v. Goodsell, 122 Mass. 176. See in this connection Ward v. Merriam, 193 Mass. 135. See also Chace v. Sherman, 119 Mass. 387, where it was held that the insufficiency of a declaration as matter of pleading cannot be raised by a request for instructions to the jury; and Huntress v. Burbank, 111 Mass. 213, where an unsuccessful attempt was made to raise that question by a request for a ruling at the beginning of the trial. The evidence before the court in Robinson v. Trofitter, 106 Mass. 51 (relied on by the plaintiff), was excluded because the affirmative defence in proof of which it was offered was not set up in the answer at all.
Exceptions sustained.