Bowe v. Minnesota Milk Co.

The defendant’s main contention in the court below was, and his sole contention here is, that this action was barred by a former recovery. The defence of a bar by a former judgment, be'ing in the nature of a confession and avoidance, is “new matter,” within the meaning of the Code, and must be specially pleaded. No such defence was set up in the answer, but the record shows that both parties tried the cause, and allowed it to be submitted to the jury, upon the theory that this was an issue in the case; and, in accordance with our repeated decisions, they must be deemed to have •consented to…