THE BUTCHERS’ ASSOCIATION OF MONROVIA, by its Secretary-Treasurer, SAMUEL B. COLE and Executive Officers, CLIFFORD JAMIESON and SIDIKI KABA, Appellants, v. 0. M. TURAY, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued April 13, 14, 1959. Decided April 24, 1959. 1. Where an answer pleaded by the defendant in an action of debt contains both a general denial and a plea in confession and avoidance, the answer is dismissable as evasive and self-contradictory. 2. Where an answer pleaded by the defendant in an action of debt is dismissed as evasive and self-contradictory, the court may disregard the defendants’ pleadings and try the cause as if the defendant had pleaded a general denial. 3. In a trial on general denial in an action of debt, the defendants cannot introduce affirmative matter in confession and avoidance. 4. Parol evidence cannot ordinarily be received to vary or contradict the terms of a written contract. On appeal from a judgment in an action of debt, judgment affirmed. Samuel B. Cole for appellants. Momolu S. Cooper for appellee. MR. JUSTICE MITCHELL delivered the opinion of the Court.* Where two or more persons contract, either by expressed or implied condition, which entitles the one to receive a sum of money from the other or others, and it appears that the sum due is certain, or may be ascertained in such a manner as to be readily reduced to certainty without regard to the manner in which the obligation was incurred, unless fraud is alleged and proved, or a set-off Mr. Justice Pierre was absent because of illness and took no part in this case. 366 LIBERIAN LAW REPORTS made, both statutory and common law authorize an action of debt as the proper action for recovery at law. This is an appeal from the Circuit Court of the Sixth Judicial Circuit, Montserrado County. The records show that, on March 5, 1955, the Honorable Stephen Tolbert, then Assistant Secretary of Agriculture, Republic of Liberia, addressed a letter to the Honorable and Reverend John C. Faye, Minister of Works, Communications, etc., Bathurst, Gambia, acknowledging receipt of his letter of introduction of Mr. 0. M. Turay, as a gentleman interested in the enterprise of selling cattle in Liberia, and directing that the said Mr. Turay make all necessary contact directly with the Secretary of Agriculture, the Honorable John W. Cooper, for consideration of his proposals. A letter was simultaneously addressed to Mr. Turay, also, assuring him of all cooperation from the Department of Agriculture. We have not been able to trace further any reference to the time of Mr. Turay’s arrival in Liberia ; but an agreement entered into by and between the said Mr. Turay and the Butchers’ Association, represented by Samuel B. Cole, Clifford Jamieson, and Sidiki Kaba is quoted word for word as follows: “This Agreement made and entered into this twentyfourth (24th) day of September, in the year of our Lord Nineteen Hundred and Fifty-five (A.D. 1955), by and between Ousainau M. Turay, cattle dealer, of 25 Leman Street, Bathurst, Gambia, hereinafter known and referred to as the Party of the First Part, and the Butchers’ Association of Monrovia, County of Montserrado, Republic of Liberia, represented by Samuel B. Cole, Secretary-Treasurer, hereinafter known and referred to as the Party of the Second Part, WITNESSETH: “Statement of Work “1.–Party of the First Part agrees and promises to supply the Monrovia Butchers with sixty-two (62) LIBERIAN LAW REPORTS 367 head of. cattle each and every month during the life of this agreement, and be responsible for the payment of all freights and insurance between Bathurst, Gambia, and Monrovia. “Life of Contract ” z.–The life of this contract shall be two (2) years, that is to say, from the month of October, 1955, when the first shipment is. expected to be made, to the last shipment in October, 1957. The work to be performed by the contract shall begin immediately upon the signing of this contract. “Contract Price “3.–The Butchers’ Association agrees to pay the cattle dealer, Ousianou M. Turay, one shilling and sixpence, or 21 cents per pound of live cattle landed in Monrovia, plus all local charges, that is, government tax or customs charges. “Method of Paying “4.–The Butchers’ Association agrees to make possible a letter of credit, through the Bank of Monrovia, Limited, to the Bank of British West Africa, Bathurst, Gambia, of three thousand ($3,000) dollars in favor of Ousianou M. Turay, Party of the First Part, to be drawn only after shipment shall have been made of said consignment and the necessary papers to this effect presented to the bank. “Acceptance and Final Payment “5.–When the cattle shall have been landed at the Free Port of Monrovia, the Association’s representative shall make the necessary inspection, and when it finds said cattle acceptable under the contract, it shall immediately ascertain the total weight and value of the said cattle in keeping with Section ‘3’ of this agreement. Thereafter the remaining sum of said consignment, subject to any addition or deduction herein provided, shall be paid within one week after delivery of said cattle to the Association. 368 LIBERIAN LAW REPORTS “6.–It is mutually agreed that this agreement shall be binding on both parties, their assigns, executors and administrators. “Given under our hands this 24th day of September, 1955. [Sgd.] 0. M. TURAY, “Party of the First Part. [Sgd.] CLIFFORD JAMIESON, SAMUEL B. COLE, SIDIKI KABA, ” “Party of the Second Part. “In the presence of : [Sgd.] STEPHEN TOLBERT, Assistant Secretary of Agriculture [Sgd.] STEPHEN TOGBA MOMO SELLEH “Monrovia September 24, 1955.” After the signing and ensealing of the foregoing agreement, the plaintiff, now appellee, left Liberia, and thereafter dispatched the below radio message to Mr. Samuel B. Cole, one of the defendants below, now appellant: “Arrived eight from Dakar transport secured at 200 daily endeavoring collect sufficient lasting three months otherwise would be losses if small quantity is collected as against � zoo daily 21 cents useless owing to largeness of expenses government willing supply i5o tons pale rice preparing to proceed letter following.” Further, according to the record, on February 23, 1956, Mr. Turay also addressed a letter to Samuel B. Cole, one of the appellants advising that it was his intention to land sixty head of cattle in Freetown, but since the butcher to the cattle was to be delivered was not available, he was shipping an assignment of 18o head direct to the he said Mr. Cole and would be arriving at Monrovia later LIBERIAN LAW REPORTS 369 by plane. As was written, the said number of head of cattle arrived at the Free Port, Monrovia, according to the bills of lading made a part of these records. For a clear presentation of the many steps, as the records show, leading to the institution of this suit, which is the subject now before the Court, we are endeavoring to make an outline as the premise to this opinion. Traveling a little further, it is observed that on March 29, 1956, a subsequent document was subscribed to by Messrs. Samuel B. Cole and Clifford Jamieson for the Butchers’ Association, and 0. M. Turay, cattle dealer, as follows : “In keeping with contract between Mr. Turay and the Butchers’ Association, Mr. Turay has brought to Liberia a total of 182 head of cattle, the contract price being 2q per pound live weight. The contract also provided that Mr. Turay would deliver 62 head of cattle per month. Unfortunately, transportation f acilities between Bathurst and Monrovia did not permit monthly shipment, so that Mr. Turay was forced to bring three months’ supply in one shipment. The butchers, on the other hand, did not have facilities to care for three months’ supply of cattle at one time, notwithstanding they agreed to have Mr. Turay bring a total of 120 head. As a result of this, the cows went astray. Some were shot and destroyed, and finally only 155 head were weighed and delivered to the butchers. After much argument and several conferences, it has been fully agreed by the butchers and Mr. Turay that this matter should be settled in the following manner : “I. That the butchers will accept and pay for the full amount of one hundred and fifty head of cattle at the reduced price of 2q per pound live weight, this quantity of cattle having already been weighed and delivered to the butchers. “2. That Mr. Turay will absorb in full the losses sus- 370 LIBERIAN LAW REPORTS tamed by the destruction of 27 head of cattle which went astray, without any cost to the butchers. “3. That, within one week from the signing of this understanding, the Association will pay Mr. Turay in full for 6o head of cattle delivered, deducting of course, all advances already made. That, one month from the date of this payment, full payment will be made to Mr. Turay by the butchers for an additional 6o head ; and that, 15 days from the date of the second payment, the last payment shall be made for the balance of 35 head ; that is to say, within seven weeks exactly from the signing of this understanding, Mr. Turay will be paid in full for the total of ’55 head of cattle delivered.” “Dated at the Department of Agriculture and Commerce, this 29th day of March A.D. 1956. “For The Butchers’ Association: “[Sgd.] SAMUEL B. COLE CLIFFORD JAMIESON C. M. TURAY /I “Witnesses: [Sgd.] BARTEH MOMO STEPHEN TOLBERT )1 J. L. SMITH.” The specified time, according to the contract, in which the installment payment was to be completed by the Butchers’ Association to Mr. Turay for the full quantity of 155 head of cattle received, according to the live weight taken previous to the signing of the said agreement, expired and there still remained an outstanding balance with the Association unpaid in the full sum of $4,7o4.4o. After the lapse of four calendar months instead of the seven weeks agreed upon, Mr. Turay was moved to procure the service of a lawyer to collect this indebtedness from the representative persons of the Butchers’ Association, and he engaged the services of Counsellor William LIBERIAN LAW REPORTS 371 N. Witherspoon, who communicated with them on August 3, 1956, requesting settleemnt of this indebtedness. To this communication, there is no indication of down payment made, but a list of debtors who were not in the least responsible to Mr. Turay for their obligations was handed to Counsellor Witherspoon for collection without the slightest effort on the part of the Association, through its representative persons, to receive in turn from the said Counsellor Witherspoon any written document absolving them of further liability. Counsellor Witherspoon failed in the collection, that is to say, was not successful in collecting the full indebtedness, and this compelled Mr. Turay to engage the service of the Beysolow and Cooper Law Firm of this City, to urge upon the Association the complete payment of the balance of indebtedness. The Beysolow and Cooper Law Firm addressed this letter to them : “HONORABLE SAMUEL B. COLE, SECRETARY-TREASURER, THE BUTCHERS’ ASSOCIATION, MONROVIA. “DEAR SIRS: “We beg to enclose a statement of account showing the status of the account between your Association and Mr. 0. M. Turay, indicating that an amount of $2,861.65 is still due Mr. Turay by the Association. “Mr. William N. Witherspoon, to whom you handed a partial list of the members of the Association who owed various amounts, has submitted a report according to which he was able to collect only $1,842.75. “We should like to apprise you that, during the recent Bopolu Executive..Council, Mr.. Turay went there and implored the President to intervene in this matter, and was advised to tell us to send the President a letter reminding him on his return to the Capital, which we are about to do. Before doing so, however, 372 LIBERIAN LAW REPORTS we have thought it proper to request your reaction to this account, even though our first letter and personal contact by Counsellor Cooper were treated by you with absolute and unexpected disdain and contempt.” “Very truly yours, [Sgd.] K0LLI SELLEH TAMBA, Counsellor at Law.” On July 4, 1957, Mr. Cole replied to the foregoing letter in the following words : “Your letter dated June 27, 1957 was received late Saturday afternoon. “In reply thereto I wish to state that it was not our intention to treat your previous letter with contempt, as you are thinking, but I simply felt that it would have been improper and humiliating for me to have gone to the several butchers in order to ascertain from them what amount was paid to the former counsel of your client, Mr. Turay, and report same to you. Since, however, you seem to take exception to this action of mine, I am sorry. “Because of the departure of some of the butchers from the City to several parts of the interior in search of cows, and since they must be in town by Friday for slaughtering of cattle on that day, I had prepared citations to have a meeting with all of them on Saturday before replying to your letter. “Since you have, however, taken up the matter with the President as gathered from a letter I received from him this afternoon, permit me to say that I am not an active butcher and not a member of the Butchers’ Association. I will therefore suggest that, in the future, you address all such letters to the person or persons responsible, if there exist any such organization. “I am sorry that I am not in a position to know what amount was collected from the butchers by Mr. W. N. Witherspoon, former counsel for your client, Mr. Turay. LIBERIAN LAW REPORTS 373 “Unless your client intends collecting from the butchers money for the cows that died from sickness, and to which his attention was called, I am afraid that the butchers do not owe the amount he is claiming. “I personally do not have any objection to the President intervening in the matter, and it would be a pleasure of mine should he see his way clear to do so. “Very truly yours [Sgd.] SAMUEL B. COLE.” Mr. Turay then instituted this action in the Circuit Court of the Sixth Judicial Circuit, Montserrado County, on September z, 1957. Pleadings progressed as far as the rebutter. The defendants were ruled to a bare denial of the facts stated in the plaintiff’s complaint because their defense was not properly pleaded in their answer filed, in that their said answer was considered by the court to be evasive and contradictory. To this ruling of the court they noted exceptions, and the regular trial on the facts of the plaintiff’s complaint, from which this appeal has grown, was begun. A judgment was rendered in favor of the plaintiff, and a motion for new trial filed, heard, and denied. To this and other rulings the defendants, now appellants, excepted and brought an appeal before us on a bill of exceptions containing forty-two counts. During the arguments before this bar, appellants’ counsel strongly argued on Counts “1,” “38,” “39,” “40” and “42,” which counts we will proceed to review, especially so since Counts “z” to “37,” inclusive, primarily refer to questions put to witnesses whilst on the witness stand, and objected to, and objections made to questions by the defendants below; all of which seemed calculated to elicit affirmative matter, which is not permissible under a bare denial, according to law. Let us now see if the trial Judge was correct or justified in placing the defendants below on a bare denial of the facts involved in the plaintiff’s complaint. 374 LIBERIAN LAW REPORTS Counts “4.” and “s” of plaintiff’s reply, which seriously attack the legality of defendant’s answer, read as follows : “4. And also because said answer is evasive and contradictory, and presents no triable issue, and hence should be dismissed with costs against the defendants, since, in Count `I’ of said answer, the defendants categorically deny the existence of any account between them and the plaintiff ; yet in Count ‘2’ thereof, defendants attempt to set up a plea of justification by pleading an ‘unhealthy’ condition of plaintiff’s cows for which he had purportedly agreed to a reduction in price ; and in Count ‘3’ of said answer, they contend that, while there was a relationship of debtor and creditor between them and the plaintiff, yet the account balance is not an account stated. Plaintiff submits that this is contrary to the settled rules of pleading in this jurisdiction, and prays dismissal of the answer with costs against the defendants. “s. And also because said answer patently embodies the error of confession and avoidance without giving color, in that, while setting up in Count `I’ a plea of denial of liability, defendants also set up that, by certain alleged conduct of the plaintiff, he had relieved them of any further liability, which method of pleading is contrary to the principles of pleading in this jurisdiction, according to which the defendant should have admitted liability before attempting to avoid same. In Ditchfield v. Dossen, i L.L.R. 492, 496-97 (1907) this Court said : “It is alleged that the court erred in ruling out the defendant’s answer because of its insufficiency. This leads us to consider the statute laws governing complaints, answers and replies. Carefully examining the answer in this case, it is clear to the mind of the court LIBERIAN LAW REPORTS 375 that the answer is not a sufficient answer to the plaintiff’s complaint; because an answer should contain a distinct and triable issue and should not be so evasive as to furnish no triable issue. For this reason the court below did not err in ruling out said answer, and hence with it all subsequent pleadings of the defendant. And such rulings are in harmony with the statute laws of this Republic. . . . “In this case the answer is evasive and contradictory, in that it denies the truthfulness of the complaint and at the same time sets up the plea of justification, which is a plea in bar. Hence it was the duty of the court below to rule out the answer and subsequent pleadings of the defendant and submit the questions of fact to the determination of the jury.” A careful study of the defendant’s answer satisfies us that, the same is evasive and against the principles of pleadings according to our law, and therefore the trial Judge did not err in dismissing the said answer and other pleadings of the defendants and restricting them to a bare denial of the facts contained in the plaintiff’s complaint. Count “I,” therefore, of the bill of exceptions is not sustained. Count “38,” taken on objections made to the admission by the court of certain documents, which the defendant attempted to have admitted into evidence, is not well taken because the defendants, being placed on the bare denial, had lost their right under the law to have any document put into evidence which partook of an affirmative nature, and the court was legally justified in sustaining objections made by the plaintiff against the admission thereof. This count being without legal merit, it is also dismissed. Considering Count “39” of the bill of exceptions, we are of the opinion that this count is not well taken because appellants have failed to state with certainty any legal objections to the charge of the Judge to the jury, nor have 376 LIBERIAN LAW REPORTS they shown that it was contrary to the evidence adduced at the trial. This Court therefore refuses to sustain the said count. Since the verdict on which the judgment was rendered entitling the plaintiff to recover from the defendant his debt in the amount sued for, and the judgment which is the subject of the instant appeal, are both sound in the sight of the law, and of the facts adduced at the trial, this Court is of the opinion that they should not be disturbed. Therefore Counts “4o” and “42” of the bill of exceptions are also dismissed. Another point strongly argued by the appellants is that, since Counsellor Witherspoon had received from a member of the Butchers’ Association the list of debtors in the cattle transaction, and had made payment of all collections made by him directly to Mr. Turay, the plaintiff in the suit, they were automatically relieved of any and all further responsibility as far as their obligation to Mr. Turay was concerned, and consequently an action of debt could not lie against them in law. Appellants also argued that, since no accounting system was established between the parties prior to the institution of the action, plaintiff’s claims against them had not been substantiated. These are points which, if accepted, would have a tendency to raise a very strong defense, and although to some extent they embrace affirmative matter, yet for the benefit of this opinion, we have elected to make some comment thereon. The defendants below, now appellants, are aware of the fact that they were in contractual obligation with the plaintiff, Mr. Turay, in which, according to records before us, they had defaulted. Any effort on the part of a third party to assume responsibility in the collection of the defendants’ outstanding indebtedness to the plaintiff should have been based upon some written understanding which necessarily would have absolved the defendants from further obligation. But this cannot be interpreted LIBERIAN LAW REPORTS 377 as relieving the defendants of their binding obligation, since, according to the law, no oral testimony can be received to explain a written instrument; and the debt was due on the legal liability of the aforesaid defendants below. This argument therefore is not considered pertinent by this Court. Concerning the question of no accounting system being established before the institution of this action, we cannot harmonize our views with those of the appellant. The record before us shows substantially that Mr. Samuel B. Cole, Secretary-Treasurer, Butchers’ Association, Monrovia, was regularly furnished with a complete statement of the accounts showing total amounts received and the total balance, which was never discredited, except by his effort to show, in his testimony as a witness, and through his pleadings which were dismissed, that he had been absolved of responsibility because of the intervention of Counsellor Witherspoon. Taking all of the facts presented in this case together, and considering the law applicable in an action of debt, we uphold the sound ruling of the trial Judge in placing the defendants below, now appellants, on the bare denial, under which defense they could introduce no affirmative matter. The plaintiff, in our opinion, having proven the action of debt conclusively against the defendants, we have no alternative but to affirm the judgment of the lower court with costs against the appellants. And it is hereby so ordered. Affirmed.