ing of oral conversation leading up to a written contract should be stricken out as immaterial and redundant.2 205 § 425. Denial of fraud.-Defendant may deny fraud in a transaction which is actually tainted by it; for what constitutes fraud, particularly fraud in law, is often a matter of much diversity of opinion. But a general denial of fraud in answer to a bill of discovery is not enough; he, therefore, must answer to every material allegation.206 § 426. Judgment on answer. Under Colorado procedure every material allegation of an answer not controverted by a replication shall be taken as true, and the defendant may become entitled to judgment on his answer. But this right is waived where the defendant goes to trial as if the issues were properly made up.207 § 427. Admissions in the answer. While a general denial may be coupled with admissions, such an answer must be definite and specific as to the allegation admitted, and if an answer is equivocal in this respect, the court will resolve all doubts against the defendant.208 An admission that since the making of the contract sought to be enforced in equity, the defendant had conveyed the land to another, is an admission of ownership at the time of making the contract.209 The denials ought to be so framed as to leave no doubt as to what is denied and what admitted. 210 An admission made in a special defense must be confined to that defense, irrespective of whether the facts admitted could have been proved under a general denial.211 If a defendant in his answer argumentatively denies the execution of a note in suit, but avers the execution of a note of the exact description of the one sued on and alleges payment, he will be held to admit the execution of the note in suit;212 and a denial in an answer that the defendant wrongfully or forcibly committed the acts alleged in the complaint, except as thereinafter stated, is an admission of the facts 205 Jordan v. Coulter, 30 Wash. 116, 70 Pac. 257. 206 Pettitt v. Candler, 3 Wend. 618; Candler v. Pettitt, 1 Paige, 427. 207 Quimby v. Boyd, 8 Colo. 194, 6 Pac. 462. 208 Pennsylvania Coal Co. v. Blake, 85 N. Y. 226; Malcolm v. Lyon, 19 N. Y. Supp. 210; St. Anthony Falls Water Co. v. King Bridge Co., 23 Minn. 186, 23 Am. Rep. 682; Leyde v. Martin, 16 Minn. 38. 209 Christiansen V. Aldrich, 30 Mont. 446, 76 Pac. 1007. 210 Long v. Long, 79 Mo. 644. 211 Miller v. Chandler, 59 Cal. 540. 212 Mutzenburg v. McGowan, 10 Colo. App. 486; 51 Pac. 523. so alleged.213 Where a plaintiff in an action against a city for injuries received alleges in his complaint that notice was given of his intention to sue, as required by statute, and the city in its answer admits the service, such an answer admits the legal sufficiency of the notice.214 Where an answer contains several defenses stated separately an admission in one merely for the sake of pleading is not available against the others,215 and the effect of the denial of the matter thus admitted is not destroyed.216 Nor is an admission in an answer avoided by a special averment of immaterial matter.217 A plea which denies the execution of an instrument and sets up matter in avoidance is not objectionable as amounting to the general issue.218 In some states an explicit admission of a fact alleged in the complaint may be used by the plaintiff to sustain the allegations of the complaint, and when a fact is so admitted. the plaintiff is relieved from the necessity of proving it at the trial;219 but the rule is otherwise in California.220 An admission of a legal conclusion by the defendant in his answer is in no way binding on the court or on a referee, whose duty it is to apply the law as it exists to the facts of the case.221 An admission by an attorney of record of the correctness of the amount for which judgment is taken, when not done in fraud of the rights of his client, destroys the effect of a denial in the answer. 222 And if a defendant in his answer admits a material allegation of the complaint, he is precluded from afterwards contesting it;223 but he may show that there were provisions of the contract other than those pleaded by the plaintiff.224 Where a defendant pleads the performance of duties alleged, he cannot 213 Peterson v. Bean, 22 Utah, 43, 61 Pac. 213. 214 City of Denver v. Soloman, 2 Colo. App. 534, 31 Pac. 507. 215 Nudd v. Thompson, 34 Cal. 39. 216 Siter v. Jewett, 33 Cal. 92; Swift v. Kingsley, 24 Barb. 541. 217 Reed v. Calderwood, 32 Cal. 109. 218 Thomas v. Page, 3 McLean, 167, Fed. Cas. No. 13906. 219 Dickson v. Cole, 34 Wis. 621; Paige v. Willet, 38 N. Y. 28; McLaughlin v. Alexander, 2 S. Dak. 226, 49 N. W. 99. 220 Amador County v. Butterfield, 51 Cal. 526; McDonald v. Southern Cal ifornia R. R. Co., 101 Cal. 206, 35 Pac. 643; De Baker v. Railway Co., 106 Cal. 278, 46 Am. St. Rep. 247, 39 Pac. 610. 221 Cutting v. Lincoln, 9 Abb. Pr. (N. S.) 436. 222 Taylor v. Randall, 5 Cal. 79. See Sampson v. Ohleyer, 22 Cal. 210. 228 Manning v. Bowman, 26 Nev. 451, 69 Pac. 995; Spangel v. Reay, 47 Cal. 608; Howard Throckmorton, 48 Cal. 482. v. 224 Young v. Borzoni, 26 Wash. 4, 66 Pac. 135, 421; American Copper Co. v. Galland etc. Co., 30 Wash. 178, 70 Pac. 236. demur to evidence showing his responsibility under them.225 Where, in an action on a note, defendants have set out in their answer an agreement under which they received the note, such agreement is a part of the defendants' admissions respecting the note, and may be considered by the court in determining whether the plaintiff has stated a cause of action.226 227 § 428. Admissions by failure to deny.-It is almost unnecessary to state that matters well pleaded in a complaint, which are not denied by the answer, are to be taken as admitted.22 This rule, of course, applies only to material allegations. 228 And where a complaint avers evidence, a failure on the part of the defendants to deny the averments does not constitute an admission.229 So, also, where the pleadings contain a fair issue of fact. the mere failure to deny legal conclusions cannot prejudice a defendant.230 Nor does the rule apply where the allegation which is unanswered is not direct and positive,231 or where the averment is not issuable.232 In California, where a defense is founded on a written instrument, and a copy is contained in the answer or annexed thereto, the genuineness and due execution will be deemed admitted unless the plaintiff, within ten days after service of the answer, file with the clerk and serve upon the defendant an affidavit denying the same; but this rule does not apply where the party desiring to controvert it is, upon demand, refused an inspection of the writing.233 225 Middleton v. Commonwealth, 11 Ky. 347. 226 Kirby v. Scanlan, 8 S. Dak. 623, 67 N. W. 828. 227 Cal. Code Civ. Proc., § 462; Colo. Civ. Code, § 61; Hanson V. Fricker, 79 Cal. 283, 21 Pac. 751; Watson v. Lemen, 9 Colo. 200, 11 Pac. 88; Snell v. Crowe, 3 Utah, 26, 5 Pac. 522; Amanda Gold Mining Co. v. People's Mining Co., 28 Colo. 251, 64 Pac. 218; Murphy v. Coppieters, 136 Cal. 317, 68 Pac. 970; Gabriel v. Tonner, 138 Cal. 63, 70 Pac. 1021; Dyas v. Southern Pacific Co., 140 Cal. 296, 73 Pac. 972; Lackmann v. Supreme Council, 142 Cal. 22, 75 Pac. 583; Davenport v. Dose, 40 Or. 336, 67 Pac. 112. 228 Powell v. Oullahan, 14 Cal. 114; Canfield v. Tobias, 21 Cal. 349. 229 Siter v. Jewett, 33 Cal. 92; McCaughey V. Schuette, 117 Cal. 225, 59 Am. St. Rep. 176, 46 Pac. 666, 48 Pac. 1088. See Packard v. Denver Savings Bank, 8 Colo. App. 209, 45 Pac. 511. 230 Hoopes v. Meyer, 1 Nev. 433; Barton v. Sackett, 3 How. Pr. 358; Jordan v. National Shoe etc. Bank, 74 N. Y. 467; 30 Am. Rep. 319. 231 Oechs v. Cook, 3 Duer, 161. 232 Raymond v. Traffarn, 12 Abb. Pr. 52. 233 Cal. Code Civ. Proc., §§ 448, 449; Colo. Code, § 62; Sloan v. Diggins, 49 Cal. 38; United States v. Alexander, 2 Idaho, 386, 17 Pac. 746. The failure to plead a defense specially is not cured by the introduction of evidence without objection in support of it.234 § 429. Answer not evidence. An answer responsive to and denying the charges in a bill of equity is not evidence for the defendant.235 An answer under our statute is not proof for defendant, but an admission in the answer of a fact stated in the complaint is conclusive evidence against him.236 Omission to plead a defense specially is not cured by the introduction of evidence without objection in support of it.237 § 430. Verification of answer.-An answer unverified to a verified complaint may be stricken out on motion.238 But if the plaintiff goes to trial on the merits without objecting to the nonverification of the answer, he will not be allowed to raise the point in the appellate court.239 When the complaint is verified. or when the state, or any officer of the state, in his official capacity, is plaintiff, the answer shall be verified also,240 except when the admission of the truth of the complaint might subject the party to a criminal prosecution, or an officer of the state, in his official capacity, is defendant.241 By verification of the complaint the plaintiff can prevent the defendant from interposing a general denial in suits on promissory notes or bills of exchange, by requiring a sworn answer. 242 A plea that denies the execution of the instrument, when required to be sworn to, if filed without affidavit, admits the execution of the instrument, but may be good for other purposes,243 unless an inspection of the original is refused.244 If a fact, which is directly averred in one part of a verified pleading, is in another part directly denied, whether it 234 Smith v. Owens, 21 Cal. 11; McComb v. Reed, 28 Cal. 284, 87 Am. Dec. 118; Nordholt v. Nordholt, 87 Cal. 556, 22 Am. St. Rep. 271, 26 Pac. 599. 235 Goodwin v. Hammond, 13 Cal. 168, 73 Am. Dec. 574; Bostic v. Love, 16 Cal. 69. 236 Fremont v. Seals, 18 Cal. 433; Blankman v. Vallejo, 15 Cal. 638. 237 Smith v. Owens, 21 Cal. 11; McComb v. Reed, 28 Cal. 281, 87 Am. Dec. 115. 238 Drum v. Whiting, 9 Cal. 422. Sufficient verification of pleading. Claiborne v. Castle, 98 Cal. 30, 32 239 McCullough v. Clark, 41 Cal. 298. 240 Cal. Code Civ. Proc., § 446, as amended 1907. 241 Id.; N. Y. Code, § 523. 243 Cal. Code Civ. Proc., § 447; Horn v. Volcano Water Co., 13 Cal. 62, 73 Am. Dec. 569; McClintick v. Johnson, 1 McLean, 414, Fed. Cas. No. 8700; Sacramento Co. v. Bird, 31 Cal. 73; Corcoran v. Doll, 32 Cal. 88; Burnett v. Stearns, 33 Cal. 473. 244 Cal. Code Civ. Proc., § 449. be in the statement of several causes of action in a complaint, or of several defenses in an answer, the party verifying it is guilty of perjury, and, on the trial, the averment which bears most strongly against the pleader will be taken as true.245 Verification or affidavit to a plea is held necessary in particular cases.246 It is no error to allow the defendant to verify his answer before trial, unless it is shown that the plaintiff is thereby taken by surprise.247 To a complaint verified the defendant filed a copy of the original verified answer, by mistake. Parties took depositions under the pleadings, and subsequently went to trial. After the close of the plaintiff's evidence, his counsel then for the first time brought the mistake to the notice of the court, by moving for judgment by default, which motion the court sustained, and refused to allow defendant to then verify his answer; it was held that the court erred, and should have allowed the defendant to have verified his answer. 248 FORMS OF GENERAL DENIAL. § 431. General denial. [TITLE.] Form No. 102. The defendant, E. F., answering the complaint herein, denies each and every allegation thereof. § 431a. General denial of one of several causes of action. [TITLE] Form No. 103. The defendant, answering the first alleged cause of action contained in the complaint herein, denies each and every allegation in the said alleged first cause of action contained. 245 Bell v. Brown, 22 Cal. 671. 246 Bullock v. Van Pelt, 1 Baldw. 463, Fed. Cas. No. 2131; Contee v. Garner, 2 Cranch C. C. 162, Fed. Cas. No. 3139; Edmondson v. Barrell, 2 Cranch C. C. 228, Fed. Cas. No. 4284; Fenwick V. Grimes, 5 Cranch C. C. 603, Fed. Cas. No. 4734; McClintick v. Cummins, 2 McLean, 98, 247 Angier v. Masterson, 6 Cal. 61. 248 Arrington v. Tupper, 10 Cal. 464. |