87 performance of a contract by the plaintiff may also specifically enumerate several particulars in which the failure to perform consists. The failure of a defendant to deny the charges in a complaint, making out a prima facie case for the plaintiff, will throw the onus on the defendant to prove his affirmative allegations,88 and where the answer fails to deny in such form as to put in issue any of the material allegations of the complaint, the plaintiff is entitled to judgment according to his prayer. 89 90 91 § 391. Statute or writing.-In pleading an ordinance or enactment founded upon a statute, in an action on contract which is in violation of said ordinance, it is not necessary to plead the statute specially. In Indiana, where an answer is founded on a written instrument, a copy of the instrument must be annexed. In California, when a written instrument is so pleaded the genuineness and due execution of such instrument shall be deemed admitted unless plaintiff file with the clerk, five days before the commencement of the term at which the action is to be tried, an affidavit denying the same;92 but not by a failure to controvert the same on oath, as prescribed in this and section 447, unless the party controverting the same is, upon demand, permitted to inspect the original before filing such affidavit. The execution of the writing sued upon is put in issue by the plea of the general issue.98 It has been held in some of the states that if a defendant sets up a contract which is required to be in writing he must so state it, or his answer is insufficient.9* § 392. Defense of insurance company.-If defendant insurance company claims exemption from liability upon the grounds that an excepted risk was the cause, or origin of the proximate cause, of the fire, against which proximate cause defendant had insured, then defendant must specify the peril which was the proximate cause of loss, and upon what premises or at what place the peril excepted caused the peril insured against.95 87 Mahurin v. Stone, 37 Ohio St. 49. 88 Thompson v. Lee, 8 Cal. 275. See, also, Cal. Code Civ. Proc., § 462. 89 Doll v. Good, 38 Cal. 287. 90 Beman v. Tugnot, 5 Sandf. 153. 91 Seawright v. Coffman, 24 Ind. 414. 92 Cal. Code Civ. Proc., § 448. See In re Garcelon, 104 Cal. 570, 43 Am. St. Rep. 134, 38 Pac. 1414, 32 L. R. 93 Gray v. Tunstall, Hempst. 558, Fed. Cas. No. 5730. 94 Taylor v. Hilary, 1 Gale (Eng.) 22. But see Dewey v. Hoag, 15 Barb. 368; Miles v. Thorne, 38 Cal. 335, 99 Am. Dec. 384. 95 Cal. Code Civ. Proc., § 437a, as amended 1907. FORMS OF ANSWERS. § 393. Formal parts of answer-General form. The defendant E. F., answering the complaint herein, denies [or if the defense is new matter, alleges, or if the new matter be available as a counterclaim, alleges for a counterclaim thereto]; I. That, etc. [If there be no counterclaim, a prayer for a judgment of dismissal is probably unnecessary, but it is usual to add it, as follows:] Wherefore, the said defendant demands judgment dismissing said complaint with costs. [If there be a counterclaim, there should be a prayer for judgment of dismissal of the complaint, and for affirmative relief upon the counterclaim, as though it were a complaint.] J. K., Attorney for defendant, E. F. § 394. Interposing both denial and new matter in defense. Form No. 89. The plaintiff, replying to the answer of the defendant W. X.. herein, as to the [first] counterclaim, First. Denies each and every allegation of the answer respecting same. Second. For a second defense to said counterclaim the plaintiff alleges: That at the time alleged in the complaint as the time of the making of the supposed note therein mentioned, this plaintiff was an infant under the age of twenty-one years, to wit, of the age of... years [or stating other defense, as if in answer to a complaint]. § 395. Denial by assignee. Form No. 90. The defendant denies that any assignment of the lease described in the complaint was at any time made to or accepted by the defendant, and further denies that the defendant at any time occupied the said premises under the said lease. § 396. Specific denial. Form No. 91. The defendant, answering the complaint herein, denies that he ever indorsed the said note. § 397. General outline form of answer, denial, justification, and mitigation. [Libel.] Form No. 92. The defendant, answering the complaint of the plaintiff, denies [here deny publication or any other material fact or facts. which are to be put in issue]. II. For a second and further defense the defendant alleges [upon information and belief] that the said supposed defamatory words set forth in the complaint herein are true; that, on or about..., 19. ., and prior to the alleged time of the speaking [or publishing] of said words the plaintiff feloniously stole and carried away. . . the property of defendant, of the value of . . . dollars, and that the said .. so stolen is the same property referred to in the alleged slanderous words set forth in plaintiff's complaint. III. And for a partial defense, and by way of mitigation of damages, the defendant alleges [here set forth want of malice, provocation, republication of current news, honest belief in truth, with facts on which it was based, etc.]. § 398. Formal parts of answer, where there are several defenses and counterclaim. Form No. 93. The defendant, E. F., answering the complaint herein: First. For a first defense to the first alleged cause of action denies [etc., generally or specifically]. Second. For a further defense to said first cause of action, said defendant alleges [here set forth the facts constituting the defense]. Third. For a further defense to said first cause of action, said defendant alleges [here set forth the facts constituting it, except that if any of them have been alleged above, an express reference to and adoption of those allegations will suffice instead of a repetition of them]. Fourth. For a counterclaim to the second alleged cause of action, said defendant alleges, etc. Wherefore, said defendant demands, etc. § 399. Commencement of answer by defendant appearing in person. Form No. 94. The defendant Y. Z., in person, answering the plaintiff's complaint herein, alleges [or, denies]: § 400. The same-By defendant sued by wrong name. Form No. 95. This defendant, E. F., in the summons and complaint in this action called G. E., answering the plaintiff's complaint herein, alleges [or, denies]: § 401. The same By infant. Form No. 96. This defendant, an infant under the age of twenty-one years, by C. D., his guardian, answering the plaintiff's complaint herein, alleges, [or, denies]: § 402. The same By lunatic. Form No. 97. The defendant, E. F., a lunatic [or, a person of unsound mind; or, an idiot; or, an habitual drunkard], by M. N., his committee and guardian, [or, by O. P., his duly appointed guardian ad litem], answering the plaintiff's complaint herein, alleges [or, denies]: § 403. The same-By husband and wife answering jointly. Form No. 98. E. F., one of the above-named defendants, and G. F., his wife, answering the plaintiff's complaint in this action, jointly allege [or, deny]: § 404. Answer alleging partial defense. Form No. 99. The defendant for a partial defense to the alleged cause of action set forth in the complaint, alleges [or, denies]: § 405. Answer upon information and belief. Form No. 100. The defendant, answering the complaint of the plaintiff herein, upon information and belief, denies [or, alleges] : 406. General denial of knowledge or information, by several defendants answering together. Form No. 101. Severally say, each for himself, that he has no knowledge or information sufficient to form a belief as to the truth of any of the allegations of the said complaint. 1 |