§ 456. Denial of representative character. [TITLE.] Form No. 128. The defendant, further answering the complaint, expressly denies that the plaintiff was on the . . . day of 19.., or at any time, appointed executor of the estate of E. F., deceased, [or, administrator; or, guardian; or trustee, as the case may be], and denies that the said plaintiff was or now is such executor [or, guardian, etc.]. [Add verification.] CHAPTER XXIII. DEFENSES-NEW MATTER. § 457. In general. The codes contemplate only two classes of defenses-general or specific denials of the allegations of the complaint, and statements of new matter constituting a defense. or counterclaim. New matter is matter sought to be introduced by the defendant which is not disclosed by the pleadings; something relied upon by him, but not put in issue by the plaintiff, and is such matter as the defendant must affirmatively establish.1 It is a settled rule of code pleading that such matter must be specially pleaded,2 and the right to rely on the defense so pleaded must be affirmatively shown by the answer. In this respect there is no difference between the classes of new matter, for whatever admits, either directly or by way of necessary implication, that a cause of action as stated in a complaint once existed, but at the same time avoids it and shows that it has ceased to exist, is new matter. If, however, the facts averred merely show that some essential allegation of the complaint is untrue, they do not constitute new matter, but only a traverse. The answer must allege those facts which, when the cause of the complaint is admitted or proved, the defendant must prove in order to defeat a recovery. And the onus is therefore on the defendant to prove this new matter, even though it involve a negative. In fact, the true test as to whether matter pleaded by the defendant in his answer is new matter is whether the burden of proof is thrown upon the defendant," the only difference between the plaintiff's statement of his cause of action and the defendant's alle 1 Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692; Bridges v. Paige, 13 Cal. 640. 2 Coles v. Soulsby, 21 Cal. 47; Landis v. Morrissey, 69 Cal. 86, 10 Pac. 258; Gillson v. Price, 18 Nev. 118, 1 Pac. 459; Staubach v. Rex1ord, 2 Mont. 566; Michalitschke v. Wells Fargo & Co., 118 Cal. 690, 50 Pac. 847. 3 Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692; Glazer v. Clift, 10 Cal. 303; Churchill v. Baumann, 95 Cal. 542, 30 Pac. 770; San Luis Ob ispo County v. Gage, 139 Cal. 401, 73 Pac. 174. 4 Piercy v. Sabin, 10 Cal. 22, 70 Am. Dec. 692. 5 Wilson v. California etc. Co., 94 Cal. 172, 29 Pac. 861. • Thompson v. Lee, 8 Cal. 275; Horton v. Ruhling, 3 Nev. 498. gations of new matter being that under the code the latter are to be deemed controverted by the opposite party." An affirmative plea seeking to raise a question which has already been put in issue by the complaint and the denial thereto, is demurrable. An answer which seeks to avoid the complaint by new matter should confess that but for the new matter the plaintiff could maintain his action.' The confession, however, may be by implication as well as directly.10 The rule in Oregon is different from that obtaining in California and other states. The Oregon code11 provides that when the answer contains new matter constituting a defense or counterclaim, the plaintiff may reply to such new matter, denying specifically each allegation controverted by him, or any knowledge or information thereof sufficient to form a belief. And decisions under this section of the Oregon code have established the rule that where new matter is alleged in the answer the failure to reply to it amounts to an admission, and when the new matter in the answer amounts to a complete defense, judgment will be given for the defendant, notwithstanding a verdict.12 Affirmative allegations in the answer which are in effect only denials are not new matter, for, as we have just noted, new matter confesses and avoids either expressly or impliedly the cause of action set up in the complaint.13 So any matter which does not discharge or avoid a cause of action theretofore existing, but the purpose of which is to show that the alleged cause of action never did exist and that material allegations of the complaint are not true, is not new matter such as is required to be specially pleaded.14 That is not new matter in an answer which Cal. Code Civ. Proc., § 462. 8 Hastings v Anacortes etc. Co., 29 Wash. 224, 69 Pac. 776. McMurray v. Gifford, 5 How Pr. 15; Tobias v. Rogers, 3 Code Rep. 156; Howes v. Carver, 7 Iowa, 491; Martin v. Swearengen, 17 Iowa, 346; Morgan v. Hawkeye Ins. Co., 37 Iowa, 359. 10 Sylvis v. Sylvis, 11 Colo. 319, 17 Pac. 912; Morgan v. Hawkeye Ins. Co., 37 Iowa, 359; Abbott v. Sartori, 57 Iowa, 656, 11 N. W. 626. 11 § 77. 12 Benicia Agricultural Works v. Creighton, 21 Or. 495, 28 Pac. 775, 30 Pac. 676; Larsen v. Oregon Ry. etc. Co., 19 Or. 240, 23 Pac. 974; Wyatt v. Henderson, 31 Or. 54, 48 Pac. 790. 13 Goddard v. Fulton, 21 Cal. 430; Alden v. Carpenter, 7 Colo. 93, 1 Pac. 904. 14 Churchill v. Baumann, 95 Cal. 541, 30 Pac. 770. See, also, Hudson v. Wabash etc. R. R. Co., 101 Mo. 13, 14 S. W. 15. might have been shown under a general denial.15 But whatever averments in the answer amount to an admission of the allegations of the complaint and tend to establish some fact not inconsistent with such allegations constituting a defense or counterclaim, and which could not have been proved under a specific denial, are new matter, requiring a replication under Montana practice.18 Where the defendant pleads new matter as a defense, praying to be discharged, he is not precluded thereby from obtaining such relief as he shows himself entitled to.17 So, in a suit for specific performance, the defendant has a right to plead in his answer as new matter, a contract different from the one alleged in the complaint, and the court will then ascertain from the evidence which was the real agreement.18 New matter arising after issue joined must ordinarily be set up by supplemental answer. 19 The plaintiff and the defendant, respectively, may be allowed on motion to make a supplemental complaint or answer and show facts material to the case arising after issue joined.20 § 458. Examples of new matter. The following are defenses constituting new matter, and in pleading them the defendant must set forth the facts relied upon to show the defense: Accord and satisfaction;21 duress; 22 estoppel in pais;23 former recovery;24 justification, such as attachment or execution;25 composition with creditors;26 equitable defenses;26a eviction;27 fraud;28 statute of frauds;29 statute of limitations;30 defense that an action. 15 Leggatt v. Stewart, 5 Mont. 107, 2 Pac. 320. 16 Mauldin v. Ball, 5 Mont. 100, 1 Pac. 409. See Sylvis v. Sylvis, 11 Colo. 319, 17 Pac. 912. 17 Davis v. Davis, 9 Mont. 267, 23 Pac. 715. 18 Thompson v. Hawley, 14 Or. 199, 12 Pac. 276. 19 Jessup v. King, 4 Cal. 331. 20 Cal. Code Civ. Proc., § 464. 21 Sweet v. Burdett, 40 Cal. 97; Berdell v. Bissell, 6 Colo. 162; Hogan v. Burns (Cal.), 33 Pac. 631; Wilkerson v. Bruce, 37 Mo. App. 156. 22 Connecticut Life Ins. Co. V. McCormick, 45 Cal. 580. 23 McKeen v. Naughton, 88 Cal. 462, 26 Pac. 354; Barnhart v. Fulkerth, 90 Cal. 157, 27 Pac. 71. 24 Anderson v. Fisk, 36 Cal. 626. 25 Thornburgh V. Hand, 7 Cal. 554; Bickerstaff v. Doub, 19 Cal. 109, 79 Am. Dec. 204; McComb v. Reed, 28 Cal. 281, 87 Am. Dec. 115; Nordholt v. Nordholt, 87 Cal. 556, 22 Am. St. Rep. 268, 26 Pac. 599; Mulford v. Estudillo, 23 Cal. 94. 26 Smith v. Owens, 21 Cal. 11. 26a Kentfield v. Hayes, 57 Cal. 409; Downer v. Smith, 24 Cal. 115; Kahn v. Old Tel. Mining Co., 2 Utah, 175. 27 Hastings v. Halleck, 10 Cal. 30. 28 Marshall v. Shafter, 32 Cal. 176; Oroville etc. R. R. Co. v. Plumas County, 37 Cal. 355; Capuro V. Builders' Ins. Co., 39 Cal. 123. 29 Osborne v. Endicott, 6 Cal. 149, 65 Am. Dec. 498. 80 Cal. Code Civ. Proc., § 458;. 31 is prematurely brought; defense of privilege in an action for libel; illegality of contract;33 after-acquired title; tax-titles.35 34 § 459. Pleas.-Pleas, by that name, are unknown to the code. The only pleadings, on the part of the defendant, are demurrer and answer. But in an equitable case, prior to the code, a plea was but a special answer, showing or relying upon one or more things as a cause why the suit should be either dismissed, or delayed, or barred. At law, it was the defendant's answer, by matter of fact, to the plaintiff's declaration. Now the defendant's pleading, while performing any or all these several offices, is known only as an answer. A respondent is not bound to reserve, for a final hearing, any matter which amounts to a bar of the relief prayed, but he may, if it be the subject for a plea, put it into that shape, in order to save the expense of going into a general examination.36 It is a general rule that a plea ought not to contain more defenses than one. Various facts can never be pleaded in one plea, unless they are all conducive to the single point on which the defendant means to rest his defense.37 A plea professing to answer the whole complaint, but which answers only a part, is bad on demurrer.38 A defendant cannot in different counts deny the same facts in different language, or make only a partial defense to a whole cause of action, or set out matter in avoidance, without confessing that which he attempts to avoid.39 A plea is defective when its averments, if admitted to be true, would not constitute a defense to the action. The plea should be direct in stating with sufficient precision the matter of defense, and not leave it to be found out by inference, however strong."1 But Grattan v. Wiggins, 23 Cal. 16; 31 Elder v. Rourke, 27 Or. 363, 41 Pac. 6. 32 Gilman v. McClatchy, 111 Cal. 606, 44 Pac. 241. 33 McCamant v. Batsell, 59 Tex. 363. 34 Moss v. Shears, 30 Cal. 468. 35 Russell v. Mann, 22 Cal. 132; McMinn v. O'Connor, 27 Cal. 246. 36 Wilson v. Graham, 4 Wash. C. C. 53, Fed. Cas. No. 17804. 37 Rhode Island v. Massachusetts, 14 Pet. 210, 10 L. Ed. 423. 38 Wallace v. Bear River Water etc. 40 Co., 18 Cal. 461; Weimer v. Shelton, 7 Mo. 237; Leslie v. Harlow, 18 N. H. 518; Feaster v. Woodfill, 23 Ind. 493; Fitzsimmons v. City Fire Ins. Co., 18 Wis. 234, 86 Am. Dec. 761; Hogan v. Ross, 13 How. 173, 14 L. Ed. 100. 39 Martin v. Swearengen, 17 Iowa, 346. 40 White v. How, 3 McLean, 291, Fed. Cas. No. 17549; Smith v. Ely, 5 McLean, 76, Fed. Cas. No. 13043. 41 Brooks v. Byam, 1 Story, 296, Fed. Cas. No. 1947, Savary v. Goe, 3 Wash. C. C. 140, Fed. Cas. No. 12388. |