The sole issue on this appeal is as follows: Was the defendant's answer sufficient either to negate the essential allegations of the plaintiff's complaint or to raise an affirmative defense thereto?
The plaintiff's contention here, as in the trial court, is that the defendant's answer was comprised of negative pregnants and was insufficient to place the allegations of the complaint in issue.
Negative pregnants occur in responsive pleadings where, as in the instant answer, the denials are stated in the very words employed in the complaint. Such denials
Under sec. 891.27, Stats., a seal upon an executory instrument is presumptive evidence of sufficient consideration. See: Estate of Cortte (1939), 230 Wis. 103, 106, 283 N. W. 336; Spankus v. West (1936), 222 Wis. 238, 267 N. W. 910. It is defendant's contention on this appeal that denial of the receipt of the $2,000 and denial that a loan was made constitute the inferential allegation of gift as a defense. In support of this contention, he relies upon sec. 263.27, Stats., which states:
While it is true that pleadings are to be liberally construed, sec. 263.13, Stats., states:
"The answer of the defendant must contain:
"(2) A statement of any new matter constituting a defense, in ordinary and concise language, without repetition." (Emphasis supplied.)
Sec. 263.16, Stats., further requires that:
"The defendant may set forth, by answer, all defenses ... he has, whether legal or equitable, or both; they must be separately stated." (Emphasis supplied.)
Contrary to the contention of the defendant, we think that the answer here under consideration cannot be interpreted to include the defense of gift or lack of consideration.
Pleadings are intended to fairly apprise the opposing party of the matters to be tried. This court in Johann v. Milwaukee Electric Tool Corp. (1955), 270 Wis. 573, 582, 72 N.W.2d 401, stated that failure of consideration was an affirmative defense and that the facts constituting failure of consideration must be pleaded. The defendant's mere denial that he had received $2,000, beside being a negative pregnant and admitting to the possibility that some other sum was received, is insufficient to raise the defense of lack of consideration. Restatement, 1 Contracts, p. 80, sec. 75 (2), states:
"Consideration may be given to the promisor or to some other person. It may be given by the promisee or by some other person." (Emphasis supplied.)
The defendant's denial of the receipt of the $2,000 thus left open the possibility that someone else received the money at his request. In such circumstances, there is no lack of consideration.
As to the pleading of gifts, it was held in Peters v. Peters Auto Sales, Inc. (1967), 37 Wis.2d 346, 350, 155 N.W.2d 85, that a party seeking to establish the existence of a gift must allege all the essential elements of a completed gift. These elements included: "(1) Intention to give, (2) delivery, (3) end of dominion by donor, (4) creation of dominion in donee...."
By the Court.—Order affirmed.