ant "cannot obtain sufficient information on which to base a belief," is not in compliance with the statute and tenders no issue.131

§ 469. Information and belief-Damages.-A denial upon information and belief that the plaintiff suffered and sustained damages in the amount of twenty-five thousand dollars, and an averment upon information and belief that the plaintiff has not sustained any damage or damages whatsoever to exceed the sum of two thousand five hundred dollars, which sum, and none other, is admitted by defendant as the damages suffered, with an offer to pay the same, the pleadings not being verified, is not considered a model answer for imitation;132 it being the employment of negative averments instead of denials. But in a Cali

fornia case,' 132a an answer of this character was upheld, upon the principle that the mere form of a denial is not material, provided it directly traverse the allegation which it is intended to meet. A denial of the full amount claimed, and admission of a certain amount to be due, and a tender of that amount, all properly go to constitute one defense.133

§ 470. The same-Judgment.-If the complaint aver the recovery of a judgment against one of several defendants, the court in which it was recovered, and the date and amount of the same, the defendants, in their answer, may deny the same upon information and belief.13

§ 471. On information and belief-Deed.-An allegation in an answer by an administrator that the defendant "avers, on information and belief, that no such deed or deeds were ever executed," is a sufficient denial of the averment in the complaint that defendant's intestate executed and delivered the particular deeds. referred to.135 The intent of the statute is fully carried out by excluding parol testimony to contradict a deed; but where parties

131 Grand Valley Irr. Co. v. Lesher, 28 Colo. 273, 65 Pac. 44.

132 Chamon v. San Francisco, Cal. Super. Ct., July Term, 1869.

132a Hill v. Smith, 27 Cal. 746. 133 Spencer v. Tooker, 12 Abb. Pr. 354.

134 Vassault v. Austin, 32 Cal. 597. 135 Thompson v. Lynch, 29 Cal. 189; Roussin v. Stewart, 33 Cal. 208;

Jones v. City of Petaluma, 36 Cal. 230. That defendant may deny on information and belief in the New York practice, see Sackett v. Havens, 7 Abb. Pr. 371, note; Davis v. Potter, 4 How. Pr. 155; Dunham v. Gates, Hoff. Ch. 185; Macauley v. Bromell, 14 Abb. N. C. 316; 67 How. Pr. 252; Wilson v. Doran, 110 N. Y. 101, 17 N. E. 688. But in Therasson V.

admit the real facts of the transaction in their pleadings, these admissions are to be taken as modifications of the instrument.186

§ 472. Presumption of knowledge. The true test to determine when a defendant may base his denial upon lack of sufficient information or belief, is whether the facts alleged are presumptively within the defendant's knowledge. Of course, if they are, this form of denial is not available.137 A defendant cannot interpose this form where the means of information are open to him.138 He cannot plead ignorance of a public record to which he has access, and which affords him the means necessary to obtain positive knowledge.130 Thus in a mandamus proceeding to compel the chairman of a board of county commissioners to sign a warrant, an allegation in the answer that the defendant has no knowledge or information sufficient to form a belief that there is money in the treasury sufficient to satisfy the warrant, and therefore denies that fact, is not a sufficient denial; the fact attempted to be denied being one which the defendant ought to know and has the means of knowing by reason of his office.140 It has been held that a party cannot deny on information and belief that a judgment was rendered against him.141 But in a California case it was held that where a complaint averred a recovery of a judgment against one of several defendants, the court in which it was recovered, and the date and amount of the same, the defendants in their answer might deny upon information and belief, and explain the reason for lack of knowledge.142 A defendant cannot admit the execution of a contract, and at the same time deny information as to its contents.143 But it has been

McSpedon, 2 Hilt. 1, a denial upon information and belief was held not sufficient. See, also, Hackett V. Richards, 3 E. D. Smith, 13; Swinburne v. Stockwell, 58 How. Pr. 312. 136 Lee v. Evans, 8 Cal. 424.

137 Thorn v. New York Cent. Mills, 10 How. Pr. 19; Edwards v. Lent, 8 How. Pr. 28; Kellogg v. Baker, 15 Abb. Pr. 286; Humphreys v. McCall, 9 Cal. 59, 70 Am. Dec. 621; Weill & Co. v. Crittenden, 139 Cal. 488, 73 Pac. 238; Fravert v. Fesler, 11 Colo. App. 387, 53 Pac. 288; Appel v. State, 9 Wyo. 187, 61 Pac. 1015; Ensley v. Page, 13 Colo. App. 452, 59 Pac. 225.

138 Hance v. Remming, 1 Code Rep. 204; Gribble v. Columbus Brewing Co., 100 Cal. 67, 34 Pac. 527.

139 Mulcahy v. Buckley, 100 Cal. 484, 35 Pac. 144; Mullally v. Townsend, 119 Cal. 54, 50 Pac. 1066; Simpson v. Remington, 6 Idaho, 681, 59 Pac. 360; Thompson v. Skeen, 14 Utah, 214, 46 Pac. 1103.

140 Appel v. State, 9 Wyo. 187, 61 Pac. 1015.

141 Buller v. Sidell, 43 Fed. 116; Roblin v. Long, 60 How. Pr. 200; Beebe v. Marvin, 17 Abb. Pr. 194.

142 Vassault v. Austin, 32 Cal. 597. 143 Wesson v. Judd, 1 Abb. Pr. 254.

held that a defendant is not presumed to recollect the date or contents of a written instrument not in his possession or control.144 Whether a defendant made or indorsed a note, and whether he transferred it, is presumably within his own knowledge.145 He may, however, deny knowledge of its indorsement or transfer, by the payee.146 There is always a presumption arising from the professional obligations of an attorney that he will not abuse his privilege by representing a party without his authority, and this presumption cannot be overcome by information and belief however honestly entertained.147

In an action against an executor, facts alleged in the complaint to the effect that the plaintiff rendered services to the testatrix, their character and value, the amount paid thereon and the amount still due, and that the testatrix promised to pay for the same by making a provision for her in her will, are not presumably within the knowledge of the defendant, and he may place his denial thereof upon the ground of a want of sufficient information or belief upon the subject.148 But in an action for goods sold and delivered, whether or not the plaintiff had sold and delivered to the defendant, at the latter's request, the property mentioned in the complaint, is a matter presumably within the knowledge of the defendant, and the denial thereof for want of information or belief will be held insufficient.149

There may, however, be cases in which, although apparently within the knowledge of the defendant, he may not know or remember the facts alleged. If so, he must state in his answer the circumstances which warrant his denial on information and belief.150

§ 473. Form of denial for want of information or belief.-In drafting a denial based upon want of information or belief, the better practice probably is to follow the words of the statute, although slight deviations therefrom are generally held not to impair it. The provisions of the codes generally are for the denial

144 Kellogg v. Baker, 15 Abb. Pr. 286.

145 San Francisco Gas Co. v. San Francisco, 9 Cal. 465; Fales v. Hicks, 12 How. Pr. 153; Thorn v. New York Cent. Mills, 10 How. Pr. 19.

146 Caswell v. Bushnell, 14 Barb. 393.

147 City & County of San Francisco

v. Staude, 92 Cal. 560, 28 Pac. 778; Robinson v. Robinson, 32 Mo. App. 88. 148 Echas v. Orena, 121 Cal. 270, 53 Pac. 798.

149 Weill & Co. v. Crittenden, 139 Cal. 488, 73 Pac. 238.

150 Brown v. Scott, 25 Cal. 190; Vassault v. Austin, 32 Cal. 597; Jones v. Perot, 19 Colo. 141, 34 Pac. 728.

of knowledge or information sufficient to form a belief, but the courts have held that the mere statement of a denial in the words "upon information and belief" is allowable;151 although where this form is used instead of the statutory language it may well be doubted whether it does not allow a little wider latitude for evasion; but it has been widely adopted by pleaders, and it is now settled that it is sufficient.152

17 153

That the defendant "does not know of his information or otherwise,' or that the defendant “is not informed and cannot state," 154 or "has no knowledge," or "is ignorant whether," or that he "has no recollection concerning it," are not sufficient denials under this provision.155 The allegation must be positive that the defendant has no information or belief sufficient to enable him to answer, and an answer placing a denial on that ground, without also averring want of belief on the subject sufficient to enable such answer, is insufficient to raise an issue.156 So an allegation in a verified complaint is not sufficiently controverted by the averment in the answer "that defendant has not sufficient knowledge to form a belief and therefore neither admits nor denies.'' 157

If in the body of an answer no fact is denied upon information and belief the verification is to be regarded as a positive affirmance of the truth of the allegations in the answer, notwithstanding the use of the form of verification containing the usual words "except as to matters and things therein stated on his information and belief."

99 158

151 Jones v. City of Petaluma, 36 Cal. 230; Kirstein v. Madden, 38 Cal. 163; Russell v. Amundson, 4 N. Dak. 117, 59 N. W. 477.

152 Vassault v. Austin, 32 Cal. 606; Roussin v. Stewart, 33 Cal. 211; Jones v. City of Petaluma, 36 Cal. 230; Kirstein v. Madden, 38 Cal. 158.

153 Sayre v. Cushing, 7 Abb. Pr. 371. 154 Elton v. Markham, 20 Barb. 348.

155 Mott v. Burnett, 1 Code Rep. 225; Robinson v. Woodgate, 3 Edw. Ch. 422; Nichols v. Jones, 6 How. Pr. 355; Wood v. Staniels, 3 Code Rep. 152.

156 Naftzger v. Gregg, 99 Cal. 83, 37 Am. St. Rep. 23, 33 Pac. 757.

157 Anderson v. Parker, 6 Cal. 197. 158 Christopher v. Condogeorge, 128 Cal. 581, 61 Pac. 174.

FORMS OF DENIAL ON INFORMATION AND BELIEF.

§ 474. Denial of knowledge, explaining cause of ignorance. Form No. 129.

[TITLE.]

The defendant answers to the plaintiff's complaint:

I. That he denies that he has ever been within the state of

that he ever personally transacted any business therein.

II. Denies that he did at the time stated, or at any other time, do or say [state what].

The defendant answers to the complaint:

That he has been informed, and believes, that each and every allegation in plaintiff's complaint is untrue and wholly false, and basing his answer upon such information and belief he denies generally and specifically each and every allegation in the plaintiff's complaint contained.

§ 476. Denial of knowledge sufficient to form a belief.

[TITLE.]

Form No. 131.

The defendant answers to the complaint:

That he has no knowledge, information, or belief sufficient to enable him to answer any or either of the allegations in said complaint contained, and, therefore, he denies each and every of said allegations. [Or if confined to one allegation, after the word "answer" proceed] the allegation that [set out the allegation, or refer to it so as to clearly identify it]; and, therefore, denies the

same.