CHAPTER XXII.

DEFENSES-GENERAL DENIAL.

§ 407. Sufficiency of a general denial.-Under the code system of pleading a general denial is equivalent to the general issue at common law, but a general denial cannot be framed as was the general issue.2 Special matters of defense such as excuse or justification of alleged trespass, and public or private right of way, or any interest in land, short of property or right of possession, must still be pleaded, and are not available under a general denial. It puts the plaintiff upon proof of all the facts necessary to entitle him to recover, and not merely of every fact alleged, but all implications and conclusions arising out of those facts. There is no such thing as common-law general issue under the code of New York," although the general denial is in most respects like it." And under the Colorado practice there is neither general denial nor general issue; each material allegation must be specifically traversed.8

A general denial is always sufficient where the complaint is not verified, but it only puts in issue the material allegations of the complaint." So where an unverified complaint alleges the value of property converted, and the answer is a general denial, the value is put in issue. 10 Under the Idaho statutes11 a complaint by a public officer in his official capacity need not be verified; but if the complaint be not in fact verified, a general verified answer may put in issue the main allegations of the complaint.12 It follows from this that where a complaint

1 White v. Moses, 11 Cal. 69.

2 Clark v. Gramling, 54 Ark. 525, 16 S. W. 475.

3 American Co. v. Bradford, 27 Cal. 367; Lux v. Haggin, 69 Cal. 276, 10 Pac. 674.

4 Ward v. Packard, 18 Cal. 391. Bellinger v. Craigue, 31 Barb. 534; Academy of Music v. Hackett, 2 Hilt. 217; Lord v. Cheesebrough, 4 Sandf. 696.

61 Van Santv. 406.

7 Livingston v. Finkle, 8 How. Pr. 486.

8 Watson v. Lemen, 9 Colo. 200, 11 Pac. 88. But see Goodridge v. Union Pacific R. R. Co., 37 Fed. 182.

Cal. Code Civ. Proc., § 437. 10 Paden v. Goldbaum (Cal.), 37 Pac. 759.

11 § 4199.

12 United States v. Shoup, 2 Idaho, 459, 21 Pac. 656.

is verified the denials of the answer must be specific; a general denial raises no issue.18

A general denial may be in any words which fairly import a denial of all the averments of the complaint. Thus a denial of "each and every allegation" is sufficient. A denial of all the "material allegations," however, does not constitute a good general denial, the reason for this being that a pleader cannot be permitted, by the use of the qualifying word "material," to assume the determination of the question as to what facts are material. Under the California practice a counter averment may constitute a general denial.15 So if an answer in response to an allegation in the complaint, instead of denying it in express terms, contains the averment that the defendant did not commit the act charged, or that the facts alleged to exist did not exist, these averments of the answer traverse the matters alleged, and are good denials.16

A general denial of the averments of a complaint "except as hereinafter admitted" is insufficient to raise any issue of material fact where the pleadings are verified. The answer having admitted an indebtedness charged in the complaint, a denial of the promise to pay is immaterial; the law implies. such a promise.17 So, also, the concluding part of an answer which traverses each and every allegation set forth in the complaint "not inconsistent with this answer" raises no issue.18

§ 408. Definition of general denial.-There are but two forms in which a defendant can controvert the allegations of a verified complaint: 1. Positively, when the facts are within his personal knowledge; and, 2. Upon information and belief, when they are not.19 But now, by the California Code of Civil Procedure,20 he may also place his denial on the ground that he has no information. or belief on the subject sufficient to answer the allegations in the complaint. A general denial is a denial in gross of all the allega

13 Cal. Code Civ. Proc., § 437; Power v. Gum, 6 Mont. 5, 9 Pac. 575; State v. Western Union Tel. Co., 4 Nev. 338.

14 Dole V. N. W. 692.

Burleigh, 1 Dak, 227, 46

15 Hill V. Smith, 27 Cal. 276; Thompson v. Lynch, 29 Cal. 189; Siter v. Jewett, 33 Cal. 92; Way v. Oglesby,

45 Cal. 655; Burris v. People's Ditch Co., 104 Cal. 253, 37 Pac. 722.

16 Hill v. Smith, 27 Cal. 479. 17 Levinson v. Schwartz, 22 Cal. 229. 18 Richardson v. Smith, 29 Cal. 529. 19 Curtis v. Richards, 9 Cal. 33; San Francisco Gas Co. v. San Francisco, 9 Cal. 453.

20 Cal. Code Civ. Proc., § 437.

27

tions of the complaint.21 Such a denial only puts in issue the allegations of the complaint.22 An implied admission does not control a general denial.23 Under the California Code of Civil Procedure," if the complaint be verified, the answer must contain a specific denial of each allegation controverted. The mere form of the denial is not material, provided it directly traverses the allegation which it is intended to meet.2 25 "The defendant for answer says he denies," etc., is in form of expression unexceptional, and the court will not call in question the fact of denial.20 A general denial which "denies each and every allegation alleged in said complaint" is sufficient. But a denial of each and every material allegation of complaint is bad, as being evasive.28 The legal effect of such denials is not changed by expressions showing that they were intended to be specific.29 The denial should not be of "all the allegations," but of “each and all," or "each and every," and a denial of all the material allegations, though good on demurrer, is not sufficiently certain. and specific.30 "That no allegation thereof is true," was recommended by the code commissioners of New York.31 "Denies each and every allegation in said complaint contained, not herein specifically admitted or specificially controverted,' has been sustained.32 If several material matters are stated in the complaint conjunctively, an answer which undertakes to deny them as a whole conjunctively stated is evasive, and an admission of the allegation attempted to be denied.3 An answer filed three weeks after the complaint, denying that defendants were and still are doing business under a certain firm

21 Dennison v. Dennison, 9 How. Pr. 246; Seward v. Miller, 6 How. Pr. 312.

22 Glazer v. Clift, 10 Cal. 303; Coles v. Soulsby, 21 Cal. 47; Stone v. Quaal, 36 Minn. 46, 29 N. W. 326.

23 Bessemer Irr. Ditch Co. V. Woolley, 32 Colo. 437, 105 Am. St. Rep. 91, 76 Pac. 1053.

24 Cal. Code Civ. Proc., § 347.

25 Hill v. Smith, 27 Cal. 476. See Power v. Gum, 6 Mont. 5, 9 Pac. 575.

26 Espinosa v. Gregory, 40 Cal. 58; Jones v. Ludlum, 74 N. Y. 61; Moen v. Eldred, 22 Minn. 538; Munn v. Taulman, 1 Kan. 254, 81 Am. Dec. 508.

33

27 Kellogg v. Church, 4 How. Pr. 339. But see Dennison v. Dennison, 9 How. Pr. 246; Rosenthal v. Brush, 1 Code Rep. (N. S.) 228; Seward v. Miller, 6 How Pr. 312.

28 Mattison v. Smith, 19 Abb. Pr. 288.

20 Hensley v. Tartar, 14 Cal. 508. 80 Lewis v. Coulter, 10 Ohio St. 451. 31 See Report, 128, for the reasoning thereon.

32 Parshall v. Tillou, 13 How. Pr. 7; Hunt v. Bennett, 4 E. D. Smith, 647; Davison v. Schermerhorn, 1 Barb. 480; Griffin v. Railroad Co., 101 N. Y. 354, 4 N. E. 740.

33 Doll v. Good, 38 Cal. 287.

34

name, is not a denial of the allegation of the complaint, applying it to the time the complaint was filed. The words "other than as hereinafter set out" does not make a sufficient complaint objectionable, even if nothing is thereafter set out.35

If

a denial, although informal, has been treated by the parties as sufficient on the trial, the same effect will be given it on appeal.36 Colorado practice recognizes no general denial or general issue.37 But in some jurisdictions a general denial in code procedure is deemed equivalent to the general issue at common law.38 Although the denial in an answer to a complaint may not be as specific as good pleading requires, for the reason that the defendants "say that they deny each and every allegation," yet where there is no motion to make the denial more specific, and it appears from the answer as a whole just what allegations of the complaint are denied and what are admitted, the denial will be held sufficient.39 When a general denial to an unverified complaint is qualified by an exception of "such allegations as are hereinafter admitted, stated, or qualified,' it will not control the effect of an affirmative allegation of the answer, which, in legal effect, admits the cause of action.40

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§ 409. What evidence is admissible. Under the general denial authorized by the code, evidence of a distinct affirmative defense is not admissible. The defendant is limited to contradicting the plaintiff's proof, and disproving the case made by him.41

Persons sued for any matter, act, or thing done. under the copyright law may plead the general issue and give the special matter in evidence,12 may avail themselves of the invalidity of an ordinance upon which plaintiff relies to support the contract sued upon.* In an action on an indebtedness the defendant, under the general denial, may prove that he was never indebted at all, or that he owes less than is

34 Nolan v. Hentig, 138 Cal. 281, 71 Pac. 440.

35 Anderson v. War Eagle Consol. Min. Co., 8 Idaho, 789, 72 Pac. 671. 36 Hiatt v. School District, 65 Cal. 481, 4 Pac. 464.

43

37 Watson v. Lemen, 9 Colo. 200, 11 Pac. 88.

38 See Louisville etc. Ry. Co. v. Trammell, 93 Ala. 350, 9 South. 870; Perkins v. Ermel, 2 Kan. 325.

39 Town of Denver v. Spokane Falls, 7 Wash. 226, 34 Pac. 926.

40 People v. Otto, 77 Cal. 45, 18 Pac. 869. But compare Lamberton v. Shannon, 13 Wash. 404, 43 Pac. 336.

41 Beaty v. Swarthout, 32 Barb.

293.

42 U. S. Rev. Stats. 1875, § 4969. 43 Weaver v. Cañon Sewer Co., 18 Colo. App. 242, 70 Pac. 953.

claimed, or that services were rendered as a gratuity, in whole or in part, or that plaintiff had himself fixed a less price for his services than he claims to recover.* 44 A denial of indebtedness alleged in the complaint is held available as equivalent to plea of nil debet.45 Defendant cannot prove an eviction on a claim for rent in arrear, under the plea nil debet, or general denial. And consequently an eviction must be set up in the answer. In California, the defense of payment is admissible under the general denial of indebtedness, but in most of the states payment is considered new matter which must be specially pleaded, as is also failure of consideration.49

47

§ 410. When general denial is allowable. A defendant after specifically admitting some of the allegations may make a general denial as to the rest,50 or as to all within certain specified folios.51 Where the facts alleged were presumptively within the defendant's knowledge, he must admit or deny positively, unless there be something special in the circumstances of the case.52 So held in action for assault.53 So of bond executed by defendant as surety." So in contract, where complaint specifically alleges contract.55

44 Schermerhorn v. Van Allen, 18 Barb. 29; Andrews v. Bond, 16 Barb. 633.

45 Simmons v. Sisson, 26 N. Y. 264; Swanholm v. Reeser, 3 Idaho, 476, 31 Pac. 804.

46 Piercy v. Sabin, 10 Cal. 30, 70 Am. Dec. 692, overruling McLarren v. Spaulding, 2 Cal. 510.

47 Frisch v. Calor, 21 Cal. 71; Fairchild v. Amsbaugh, 22 Cal. 572; Wetmore v. San Francisco, 44 Cal. 294; Davanay v. Eggenhoff, 43 Cal. 395; Brown v. Orr, 29 Cal. 120; Brooks v. Chilton, 6 Cal. 640; Staab v. Jaramillo, 3 N. Mex. 33, 1 Pac. 170.

48 Hubler v. Pullen, 9 Ind. 273; 68 Am. Dec. 620; Baker v. Kistler, 13 Ind. 63; Stevens v. Thompson, 5 Kan. 305; Clark v. Spencer, 14 Kan. 398; 19 Am. Rep. 96; McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696; Texier v. Gouin, 5 Duer, 389; Edson v. Dillaye, 8 How. Pr. 273; Morrill v. Irving Fire Ins. Co., 33 N. Y. 429, 88 Am. Dec. 396; Martin v. Pugh, 23

So in defendant causing

Wis. 184; Phillips v. Jarvis, 19 Wis. 204; Knapp v. Runals, 37 Wis. 135.

49 Nunn v. Jordan, 31 Wash. 506, 72 Pac. 124.

50 Parshall v. Tillou, 13 How. Pr. 7; Blaisdell v. Raymond, 6 Abb. Pr. 148; Smith v. Wells, 20 How. Pr. 158.

51 Gassett v. Crocker, 9 Abb. Pr. 39; Blake v. Eldred, 18 How. Pr. 240.

52 Vassault v. Austin, 32 Cal. 597; Humphreys v. McCall, 9 Cal. 59; Brown v. Scott, 25 Cal. 195; Shearman v. New York Cent. Mills, 1 Abb. Pr. 187; Thorn v. New York Cent. Mills Co., 10 How. Pr. 19; Lewis v. Acker, 11 How Pr. 163; Edwards v. Lent, 8 How. Pr. 28; Fales v. Hicks, 12 How. Pr. 153; Slater v. Maxwell, 6 Wall. 268.

53 Richardson v. Wilton, 4 Sandf. 708.

54 Hance v. Rumming, 1 Code Rep. (N. S.) 204, 2 E. D. Smith, 48.

55 Ord v. Steamer Uncle Sam, 13 Cal. 369.