process to issue.50

So of fact admitted by original defendant."T

So of goods sold and delivered to partner.58

§ 411. Partial denial. Where the cause of action is divisible, or where several causes of action are stated, defendant in his answer may deny part or some or one of the causes of action, and leave the residue unanswered.59 In answering a complaint which contains several causes of action, and such answer contains several defenses, each defense pleaded should refer to the cause of action which it is intended to answer. But the effect of partial denial will be limited to the precise ground covered."1

62

60

§ 412. Denial by articles.-Where the defendant relies on a state of facts single and indivisible, it is not necessary to separately and distinctly state and number each mitigating circumstance. If the pleadings are under oath, and the replications in response to a material averment of the answer undertake to deny, by saying "it is not true," etc., the replication is evasive, and does not specifically deny the averment."3 A denial made three weeks after filing of the complaint that defendants "were and still are" is evasive.64 An implied admission does not control a general denial, which in addition to the general denial traverses "each and every allegation of the complaint not heretofore specifically admitted. "'es And only such allegations should be denied as defendant intends to controvert.66 A denial cannot be made by implication.67 Each proposition should be separately denied." Nor should two or more grounds of defense be stated, when one of

56 Lawrence v. Derby, 15 Abb. Pr. 346.

57 Forbes v. Waller, 25 N. Y. 430. 58 Chapman v. Palmer, 12 How. Pr. 38.

59 Cal. Code Civ. Proc., § 441; Smith v. Shufelt, 3 Code Rep. 175; Tracy v. Humphrey, 3 Code Rep. 190; Willis v. Taggard, 6 How. Pr. 433; Genesee Mut. Ins. Co. v. Moynihen, 5 How. Pr. 322; Longworthy V. Knapp, 4 Abb. Pr. 115; Otis v. Ross, 8 How. Pr. 193.

60 Or. Code, § 73; Hindman v. Edgar, 24 Or. 581, 17 Pac. 862.

61 San Francisco Gas Co. v. San Francisco, 9 Cal. 453.

62 Kinyon v. Palmer, 20 Iowa, 138. 63 Verzan v. McGregor, 23 Cal. 339. 64 Nolan v. Hentig, 138 Cal. 281, 71 Pac. 440.

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

66 Newell v. Doty, 33 N. Y. 83. 67 West v. American Exch. Bank, 44 Barb. 175.

68 Cal. Code Civ. Proc., § 437; More v. Del Valle, 28 Cal. 170; Fitch v. Bunch, 30 Cal. 208.

them would be as effectual in law as all of them." 69 Such denials would be bad for duplicity, which must be avoided."0 A specific denial of one or more allegations is held to be an admission of all others well pleaded."1 Denials of several allegations are but one defense.72 A special traverse, as originally devised and used, was simply a mode by which the pleader in the inducement spread his own right or title upon the record, adding to this implied denial of the opposing claim a direct denial under the absque hoc. The inducement in such a traverse must on its face give the pleader a good right or title, or the whole plea is bad." Each denial of an answer must be regarded as applying to the specific allegation it purports to answer, and not as forming a part of an answer to some other specific and entirely independent allegation." A denial in an answer should by its words so describe the allegations of the complaint which the pleader intends to controvert that any person of intelligence can identify them.75

76

73

§ 413. Denials-Form and sufficiency-Continued.-Where an answer to a complaint raises material issues upon the matters alleged therein, the answer is not demurrable for want of sufficient facts. And although an answer may be defective, if it can be gathered therefrom that an issue is tendered by the pleading upon a material matter, it is error to render judgment on the pleadings. in favor of the plaintiff." The denial of an allegation need not be absolute nor in any particular form.78 Any allegation in an answer which, if found to be true, necessarily shows that the allegation of the complaint as to the same matter is untrue is a good traverse, and sufficient as a denial. But it is a rule of code pleading that denials must be specific, and that it must clearly

69 Lord v. Tyler, 14 Pick. 164. To Hooper v. Jellison, 22 Pick. 250; Cahoon v. Bank of Utica, 7 N. Y. 486.

71 De Ro v. Cordes, 4 Cal. 117; Caulfield v. Saunders, 17 Cal. 569; Whitlock v. McKechnie, 1 Bosw. 427; Pardee v. Schenck, 11 How. Pr. 500; Archer v. Boudinet, 1 Code Rep. (N. S.) 372; Corwin v. Corwin, 9 Barb. 219; Reilly v. Cook, 22 How. Pr. 93; 13 Abb. Pr. 255. See Walrod v. Bennett, 6 Barb. 144; Harbeck v. Craft, 4 Duer, 122.

79

72 Otis v. Ross, 8 How. Pr. 193. 73 Fox. v. Nathans, 32 Conn. 348. 74 Racouillat v. Rene, 32 Cal. 450. 75 Mattison v. Smith, 19 Abb. Pr. 288.

76 Bennett v. Tacoma etc. Water Co., 3 Wash. 337, 28 Pac. 520.

77 Rourk v. Miller, 3 Wash. 73, 27 Pac. 1029.

78 Gee v. Culver, 12 Or. 228, 6 Pac. 775.

79 Burris v. People's Ditch Co., 104 Cal. 248, 37 Pac. 922. See Churchill v. Baumann, 95 Cal. 541, 30 Pac. 770.

and unequivocally appear what the pleader intends to deny.80 It is held good pleading to deny wholly the wrong with which one is charged, putting the party alleging it to the proof, relying upon his inability to make any proof, or proof of the whole wrong.81 A stipulation by the parties may take the place of denials in an answer.82

.83

84

§ 414. Defective denials.—A defective answer may be aided by the proof; or it may be cured by the plaintiff's reply. An answer filed six months after filing a complaint, which simply denies that the plaintiffs are then the owners and in actual possession of the premises claimed, is a virtual confession of the complaint, and is not a denial.85 Where an answer does not deny any of the facts upon which the plaintiff's claim for a lien is based, but denies indebtedness to the plaintiff, and that the plaintiff had any lien, the denials are to be deemed conclusions of law, and no issues of fact are raised by the pleadings.86 So a denial. in a pleading of "legal notice. so as in any way to affect . . . the title derived," etc., does not put in issue the allegation of notice in the pleading answered.87 So an answer which states that "it does not deny or admit" the allegations of the plaintiff's complaint does not constitute "a general or specific denial," and is therefore insufficient under section 185 of the Washington Code of Procedure. So, as a general rule, where an answer does not deny the facts stated in a paragraph of the complaint, but controverts the conclusions drawn by the pleader from the facts stated, the answer does not traverse any material fact.88 But where an answer is defective in its denials, if a trial is had in all respects, and evidence taken as though it properly raised an issue, without any objection in the court below to the defective denials, the

80 Denver etc. Construction Co. V. Stout, 8 Colo. 61, 5 Pac. 627. See Power v. Gum, 6 Mont. 5, 9 Pac. 575.

81 Little Pittsburg etc. Min. Co. v. Little etc. Mining Co., 11 Colo. 223, 7 Am. St. Rep. 226, 17 Pac. 760.

82 Alta Silver Min. Co. v. Mining Co., 78 Cal. 629, 21 Pac. 373, in which case an instance is given.

83 Johnson v. Bailey, 17 Colo. 59, 28 Pac. 81.

84 James v. McPhee, 9 Colo. 486, 13 Pac. 535.

85 Leggatt v. Stewart, 5 Mont. 107, 2 Pac. 320; Nolan v. Hentig, 138 Cal. 281, 71 Pac. 440; Bessemer Irr. Ditch Co. v. Woolley, 32 Colo. 437, 105 Am. St. Rep. 91, 76 Pac. 1053.

86 Merrigan v. English, 9 Mont. 113, 22 Pac. 454, 5 L. R. A. 837.

87 Seaman v. Hax, 14 Colo. 536, 24 Pac. 461, 9 L. R. A. 341.

88 Lake v. Steinbach, 5 Wash. 659, 32 Pac. 767.

plaintiff cannot object upon an appeal taken by him that the answer raised no issue.89 And imperfect and defective denials, if acted upon as sufficient at a trial, are in no sense admissions of the allegations of a pleading which are attempted to be denied.90

94

§ 415. Literal and conjunctive denials.-Under our practice and that of the common law, a specific denial of one or more allegations is held to be an admission of all others well pleaded.91 It has also been held by our courts that a specific denial to each allegation of a complaint is a separate denial applicable only to the specific allegation, controverted," as the object of the code in allowing the plaintiff to verify is to narrow the proof on the trial, and compel the defendant to deny specifically each separate allegation. And the defendant must either deny the facts alleged or confess and avoid them. Defendant sued on an account is entitled to join a plea of limitations with a general denial.95 The rules of pleading under our system are intended to prevent evasion, and to require a denial of every specific averment in a sworn complaint, in substance and in spirit, and not merely a denial of its literal truth; and whenever the defendant fails to make such denial, he admits the averment.96 It is now the settled law that where defendant denies plaintiff's proposition in a verified complaint, as a whole and as conjunctively stated, it is alike in violation of the principles of common-law pleading as well as the express direction of our statute; and thus an answer to a verified complaint should contain a specific denial to each allegation of the complaint controverted, or a denial thereof according to the defendant's information and belief. The denial should be in the disjunctive, although the allegations of the complaint

89 Klopper v. Levy, 98 Cal. 525, 33 Pac. 444.

90 Loftus v. Fischer, 106 Cal. 616, 39 Pac. 1064.

91 De Ro v. Cordes, 4 Cal. 117; Manning v. Bowman, 26 Nev. 451, 69 Pac. 995.

92 San Francisco Gas Co. v. San Francisco, 9 Cal. 453; Seward v. Miller, 6 How. Pr. 312.

93 San Francisco Gas Co. v. San Francisco, 9 Cal. 453.

94 Piercy v. Sabin, 10 Cal. 22, 70

Am. Dec. 692; Fish v. Redington, 31
Cal. 185.

95 Or. B. & C. Codes, §§ 73, 74; Dutro v. Ladd, 50 Or. 120, 91 Pac. 459.

96 Oil Creek Gold Min. Co. v. Fairbanks, 19 Colo. App. 142, 74 Pac. 543; Blankman v. Vallejo, 15 Cal. 638; Castro v. Wetmore, 16 Cal. 380; Higgins v. Wortell, 18 Cal. 333; Morrill v. Morrill, 26 Cal. 292; Camden v. Mullen, 29 Cal. 564; Blood v. Light, 31 Cal. 115; Toland v. Mandell, 38 Cal. 30; Doll v. Good, 38 Cal. 287.

are stated in the conjunctive.97 But in New York the doctrine, it would seem, has been qualified.98

If an allegation of a complaint consists of several clauses or propositions connected by the copulative conjunction "and," a denial of the entire allegation is evasive and insufficient. Each proposition should be separately denied." Where several allegations of a complaint are not connected by the conjunction “and,” a denial in the answer of these allegations conjunctively does not amount to a denial of the allegations to which the defendant professes to respond.100

Literal denials, following the very words of the complaint, are insufficient. So where the answer denied the allegations of indebtedness as to the time, amount, and work, in the very words of the complaint, it was held that the answer raised an immaterial issue upon these particulars.101 So where the form of the allegation was that defendant "unlawfully and wrongfully seized and took said property into his possession from said plaintiff," and defendant denied "that he (defendant) wrongfully and unlawfully seized, took or carried away the said property," it was held that the fact that defendant took the property from the plaintiff was not denied, but admitted.102

§ 416. Denial of legal conclusions.-If the answer merely denies a conclusion of law resulting from the facts contained in the complaint, it is insufficient;103 and in such case the facts

97 Reed v. Calderwood, 32 Cal. 109; Burke v. Caruthers, 31 Cal. 467; Fish v. Redington, 31 Cal. 194; Brown v. Scott, 25 Cal. 195; Kuhland v. Sedgwick, 17 Cal. 123; Hensley v. Tartar, 14 Cal. 508; Wise v. Rose, 110 Cal. 159, 42 Pac. 569; Salinger v. Lusk, 7 How. Pr. 430; Davison v. Powell, 16 How. Pr. 467; Shearman v. New York Cent. Mills, 1 Abb. Pr. 187; Baker v. Bailey, 16 Barb. 54; Young v. Catlett, 6 Duer, 443; Beach v. Barons, 13 Barb. 305; Livingston v. Hammer, 7 Bosw. 670; Otis v. Ross, 8 How. Pr. 193; King v. Ray, 11 Paige, 235; Elton V. Markham, 20 Barb. 343; Blake v. Eldred, 18 How. Pr. 240.

98 Wall v. Buffalo Water Works, 18 N. Y. 119.

99 More v. Del Valle, 28 Cal. 170; Mulcahy v. Buckley, 100 Cal. 484, 35 Pac. 144.

100 Fitch v. Bunch, 30 Cal. 208; Leroux v. Murdock, 51 Cal. 541.

101 Caulfield v. Sanders, 17 Cal. 569. See, also, Republican Pub. Co. v. Mosman, 15 Colo. 399, 24 Pac. 1051.

102 Woodworth v. Knowlton, 22 Cal. 164; Richardson v. Smith, 29 Cal. 531.

103 Steph. Pl. 180; 1 Chit. Pl. 645; 1 Van Santv. Pl. 416; Nelson v. Murray, 23 Cal. 338; Wormouth V. Hatch, 33 Cal. 128; Lightner v. Menzle, 35 Cal. 452; Turner v. White, 73 Cal. 99, 14 Pac. 794; Gruwell v. Seybolt, 82 Cal. 9, 22 Pac. 938; Galo v. James, 11 Colo. 542, 19 Pac. 446; Lake v. Steinbach, 5 Wash. 663, 32