by itself. If the answer to a particular allegation is a denial of it, and there is no admission in the answer inconsistent with this denial, an issue will be said to be fairly made.153 A general denial of the material allegations of a complaint cannot be stricken out on the ground that it is sham or frivolous.154 And although a general denial of the allegations of the complaint may, if falsely pleaded, be characterized as sham, yet an inquiry in advance of the trial cannot be entertained by the court as to the good faith of the defendant in pleading it, nor can it be stricken out as a sham on the application of the plaintiff.155 And the defendant cannot be compelled to give an affidavit or deposition in support of his answer.156 Nor can an answer, verified by the defendant and setting up a sufficient defense be stricken out as sham, whether such answer consists of denials or sets up an affirmative defense.157 Where a negative allegation is made in stating the cause of action, although it must, of course, precede an averment by the opposite party of the fact negatived, it, nevertheless, constitutes. the basis of the issue joined by the subsequent averment, and the latter operates as a traverse and not as an averment of new matter, 158

Under the California code,1 159 denials contained in an answer which do not explicitly traverse the material allegations of the complaint may be stricken out on motion as sham and irrelevant.160 So a denial which argumentatively disputes a fact averred in the complaint is bad; the traverse must be direct. 161 Denials must not be in the alternative, as such denials are defective in form and leave it uncertain what is intended to be denied.162 So an answer merely stating a different version of the transaction from that set up in the complaint is not a denial,188 as it does not explicitly

153 Racouillat V. Rene, 32 Cal. 450.

154 Larsen v. Winder, 14 Wash. 647, 45 Pac. 315; State v. King, 6 S. Dak. 297, 60 N. W. 75.

155 Fay v. Cobb, 51 Cal. 313; Greenbaum v. Turrill, 57 Cal. 287; Cupples v. Jensen, 4 Dak. 151, 27 N. W. 206, 28 N. W. 193; Green v. Hughitt Agency, 5 S. Dak. 456, 59 N. W. 224.

156 In re Bartholamew, 41 Kan. 276, 21 Pac. 273.

157 Greenbaum v. Turrill, 57 Cal.

285; King v. Waite, 10 S. Dak. 5, 70 N. W. 1056.

158 Frisch v. Caler, 21 Cal. 71. See, also, Scott v. Wood, 81 Cal. 404, 22 Pac. 871.

159 Code Civ. Proc., § 453.

160 Tynan v. Walker, 35 Cal. 634, 95 Am. Dec. 152.

161 Gallagher v. Dunlap, 2 Nev. 326; Frisbee v. Lindley, 23 Ind. 511.

162 Otis v. Ross, 8 How. Pr. 193; Corbin v. George, 2 Abb. Pr. 467.

163 West v. American Exch. Bank, 44 Barb. 176.

traverse the allegations of the complaint.184 If the defendant desires to give a different version of the matter in controversy, it should be accompanied by a specific denial of all the allegations of the complaint not consistent with the allegation of the new version.

An answer containing an absolute and unqualified denial of one or more material allegations of the complaint is good,165 and if it indicates a good defense, although stating it imperfectly, the defect should be met by a motion calling for an amendment curing such defect and not by motion for judgment on the answer as frivolous.166 So, in an action for the breach of a contract to clear certain land of standing timber so as to fit it for seeding, the answer admitting the contract but denying a breach thereof, and showing affirmatively that the defendants were proceeding with due diligence to perform the contract according to its terms, until requested by the plaintiffs to desist, cannot be said to be either sham or immaterial.167 If a case is tried upon the theory that the answer denies the allegation of the complaint, the plaintiff will not be permitted to raise objection for the first time on appeal.168

§ 420. Immaterial allegations.-Averment of plaintiff's belief is not traversable.169 Allegations anticipating a defense need not be denied.170 Persons who make contracts with a corporation cannot deny its legal existence. The credit given on an account in the complaint is not a traversable fact.172

171

173

The amount of damages need not be denied." So the amount of damages on a breach of covenant need not be denied.174

164 Wood v. Whiting, 21 Barb. 190; Levy v. Bend, 1 E. D. Smith, 169; Hamilton v. Hough, 13 How. Pr. 14; Corwin v. Corwin, 9 Barb. 219.

165 Hill v. Walsh, 6 S. Dak. 421, 61 N. W. 440.

166 Yerkes v. Crum, 2 N. Dak. 72, 49 N. W. 422.

167 Brown v. Porter, 7 Wash. 327, 34 Pac. 1105.

168 White v. San Rafael etc. R. R. Co., 50 Cal. 417; Alhambra Water Co. v. Richardson, 72 Cal. 599, 14 Pac. 379; Toulouse v. Beckett, 2 Idaho, 288, 13 Pac. 172.

So

169 Radway v. Mather, 5 Sandf. 654; Patterson v. Caldwell, 1 Metc. (Ky.) 492; Walters v. Chinn, 1 Metc. (Ky.) 502.

170 Canfield v. Tobias, 21 Cal. 349.

171 White v. Ross, 15 Abb. Pr. 66; East River Bank v. Rogers, 7 Bosw. 494; Steam Navigation Co. v. Weed, 17 Barb. 378; Park Bank v. Tilton, 15 Abb. Pr. 384.

172 Hodgins v. Hancock, 14 Mee. & W. 120.

173 Van Santv. Pl. 249.

174 Hackett v. Richards, 3 E. D. Smith, 13; Raymond v. Traffarn, 12 Abb. Pr. 52.

177

circumstances of aggravation are not traversable;175 nor allegations of special damages, unless of the gist of the action.176 In Indiana, matters in mitigation of damages only, except in actions for libel and slander, cannot be specially pleaded or set up in the answer, but should be given in evidence under the general denial. Allegations of matters of evidence in a pleading are not issuable facts. If the answer puts in issue the ultimate facts resulting from the evidence, it is a sufficient denial.178 Conclusions of law do not call for a denial, and are not binding as admissions when not denied.179 Where plaintiffs' declaration averred that defendants promised to pay plaintiffs as "the heirs of C.," a denial that plaintiffs were the heirs of C. was held bad, as not denying any material allegation.180 Allegations of intention showing express malice are not issuable facts. 181 The denial of time or place at which an act is alleged to have been done is frivolous, where time or place are not the substance of the action.182 Value in detention of property should not be denied.183

§ 421. Insufficient denial.-If a cause is tried upon the theory that the answer denies the allegation of the complaint, the plaintiff will not be permitted to raise the objection in the supreme court that the answer is insufficient in this respect.184 An answer containing a different version of the transaction to that contained in the complaint is not a denial,185 as it does not specially controvert the allegations contained in the complaint.186 Where

175 Bates v. Loomis, 5 Wend. 134; Gilbert v. Rounds, 14 How. Pr. 49; Schnaderbeck v. Worth, 8 Abb. Pr. 37.

176 Malony v. Dows, 15 How. Pr. 265; Perring v. Harris, 2 M. & Rob. 5. 177 Smith v. Lisher, 23 Ind. 500. 178 Moore v. Murdock, 26 Cal. 524; Racouillat v. Rene, 32 Cal. 450.

179 Kidwell v. Ketler, 146 Cal. 12, 79 Pac. 514; Zorn v. Livesley, 44 Or. 501, 75 Pac. 1057.

180 Chandler v. Chandler, 21 Ark. 95. 181 Fry v. Bennett, 5 Sandf. 54. 182 Castro v. Wetmore, 16 Cal. 379; Kuhland v. Sedgwick, 17 Cal. 123; Livingston v. Hammer, 7 Bosw. 670; Davison v. Powell, 16 How. Pr. 467; Baker v. Bailey, 16 Barb. 54; Salinger v. Lusk, 7 How. Pr. 430.

183 Connoss v. Meir, 2 E. D. Smith, 314; McKensie v. Farrell, 4 Bosw.

193; Woodruff v. Cook, 25 Barb. 505. See, however, Archer v. Boudinet, 1 Code Rep. (N. S.) 373. As to where a denial upon information and belief is evasive of the issue tendered, see Humphreys v. McCall, 9 Cal. 59, 70 Am. Dec. 621; Brown v. Scott, 25 Cal. 194; Vassault v. Austin, 32 Cal. 597; Edwards v. Lent, How. Pr. 28; Ketchum v. Zerega, 1 E. D. Smith, 554; Kellogg v. Baker, 15 Abb. Pr. 287; Taylor v. Luther, 2 Sumn. 228, Fed. Cas. No. 13796.

184 White v. San Rafael etc. R. R. Co., 50 Cal. 417.

185 West v. American Exch. Bank, 44 Barb. 176.

186 Wood v. Whiting, 21 Barb. 190; Levy v. Bend, 1 E. D. Smith, 169; Hamilton v. Hough, 13 How. Pr. 14; Corwin v. Corwin, 9 Barb. 219;

188

a defendant gives a different version of the matter in controversy, it should be accompanied by a specific denial of all the allegations of the complaint not consistent with the allegations in the answer. 187 A denial manifestly inconsistent with statements of fact in other parts of the same pleading is bad.18 A mere denial of interest or ownership in the plaintiff will be insufficient where no statement of fact is made to sustain it.189 Where a negative allegation is necessary in stating the cause of action, although it must, of course, precede an averment by the opposite party of the fact negatived, it nevertheless constitutes the basis of the issue joined by the subsequent averment, and the latter operates as a traverse, and not as an averment of new matter.190 A denial which argumentatively disputes a fact averred in the complaint is demurrable, as the traverse must be direct.191 Denials must not be in the alternative, as they are defective in form, and leave it uncertain what is denied." A party cannot controvert the declaration he has made by deed. 193 Although

192

a general denial of the allegations of the complaint may, if falsely pleaded, be characterized as sham, yet an inquiry in advance of the trial cannot be entertained by the court as to the good faith of the defendant in pleading it, nor can it be stricken out as sham on the application of the plaintiff.194

§ 422. Sham matter. It is error to strike out as sham a verified answer, or portion thereof, which alleges matters constituting a defense, although it contains other irrelevant or evidential matter. The motion should go to only the objectionable part.195 An answer alleging that defendants were merely sureties, that plaintiff extended the time of payment to the principal for a valuable consideration, without the consent of the sureties, which allegations are not false in fact, nor pleaded in bad faith, is not

Loosey v. Orser, 4 Bosw. 392. See, as to its implying a denial of plaintiff's title to relief, Peck v. Brown, 26 How. Pr. 350.

187 Compare Dykers v. Woodward, 7 How. Pr. 313.

188 Livingston v. Harrison, 2 E. D. Smith, 197.

189 Russell v. Clapp, 7 Barb. 482, 4 How. Pr. 347.

190 Frisch v. Caler, 21 Cal. 71. 191 Gallagher v. Dunlap, 2 Nev. 326; Mower v. Burdick, 4 McLean, 7,

Fed. Cas. No. 9890; Frisbee v. Lindley, 23 Ind. 511.

192 Otis v. Ross, 8 How. Pr. 193; Corbin v. George, 2 Abb. Pr. 467.

193 Tartar v. Hall, 3 Cal. 263; United States v. Thompson, 1 Gall. 388, Fed. Cas. No. 16486.

194 Fay v. Cobb, 51 Cal. 313. See Larson v. Winder, 14 Wash. 647, 45 Pac. 315.

195 Continental Building etc. Assn. v. Boggess, 145 Cal. 30, 78 Pac. 245.

a sham plea which may be stricken out on motion.196 But the court may expunge from its records scandalous matter which raises no issue, and serves no purpose, except to injure the reputation of the parties at whom it is aimed.197

§ 423. Contract. In an action for the breach of a contract to clear certain land of standing timber so as to fit it for seeding, an answer which admits the contract, but denies a breach thereof, and shows affirmatively that the defendants were proceeding with due performance thereof according to its terms until requested by the plaintiffs to desist from so doing, cannot be said to be either sham, frivolous, or immaterial.198 Where an answer shadows forth a good defense, but states it imperfectly, the defect should be met by a motion calling for an amendment curing such defect, and not by motion for judgment on the answer as frivolous, 199 A frivolous answer is one so clearly and palpably bad as to require no argument or illustration to show its character, and which would be pronounced frivolous and indicative of bad. faith in the pleader upon a bare inspection.200 A general denial

of the material allegations of a complaint cannot be stricken out on the ground that it is sham or frivolous pleading.201 Α plea in an action on a written contract setting up a contemporaneous parol agreement inconsistent with the written contract is insufficient, and requires no replication.202

§ 424. The same-Demand.—In an action on contract, the defense that no demand was made before the commencement of the suit cannot be taken advantage of, unless pleaded in the answer. 203 A denial that the demand was made on a certain day, as alleged, is a denial that the demand was made on the particular day stated in the complaint, when the statement of the demand is not qualified as to the manner of its being made.204 The plead

196 Randall v. Simmons, 40 Or. 554, 67 Pac. 513.

197 Morrison v. Snow, 26 Utah, 247, 72 Pac. 924.

198 Brown v. Porter, 7 Wash. 327, 34 Pac. 1105.

199 Yerkes v. Crum, 2 N. Dak. 72, 49 N. W. 422.

200 Strong v. Sproul, 53 N. Y. 499; Cottrill v. Cramer, 40 Wis. 555; Bank of Commerce v. Humphrey, 6 S. Dak. 415, 61 N. W. 444.

201 Larson v. Winder, 14 Wash. 647, 45 Pac. 315; State v. King, 6 S. Dak. 297, 60 N. W. 75.

202 Fitzgerald v. Burke, 14 Colo. 559, 23 Pac. 993. When copy of a written instrument in answer is deemed admitted under Montana Code, see Teitig v. Boesman, 12 Mont. 404, 31 Pac. 371.

203 Rabsuhl v Lack, 35 Mo. 316. 204 Hoopes v. Meyer, 1 Nev. 433.