waiver of the demurrer,23 unless the complaint should be so defective as not to support the judgment.24 If several grounds of demurrer are alleged, the first being that the complaint does not state facts sufficient to constitute a cause of action, and the demurrer is overruled, after which the defendant answers, he thereby waives all objection to the complaint except the first.25 Application for leave to plead over is addressed to the discretion of the court below.28 And unless this discretion is manifestly abused, the appellate court will not interfere."7

§ 666. Cross-complaint and counterclaim.-A cross-complaint bears a close resemblance to a counterclaim. The distinction is subtle, but none the less definite. The cross-complaint brings in more comprehensive matter than a counterclaim, and includes any just cause of action as a set-off to the plea of plaintiff. When the answer contains a cross-complaint, a reply is necessary, in default of which all matters alleged in the cross-complaint will be taken as confessed. Such replication is not necessary to a counterclaim.28 A counterclaim, while it may exist in favor of defendant and against plaintiff, may in other respects go further than a cross-complaint, and, if the cause of action arose on contract, may set forth any other cause of action arising on contracts as a counterclaim.29 A cross-complaint must in itself state all the requisite facts to entitle the defendant to affirmative relief, and defects in it cannot be cured by averments of any of the other pleadings in the action.30 The same requisites are essential in a counterclaim.31

§ 667. In an action for conversion.-An answer that defendant claimed the property as assignee for the creditors of the owner, that plaintiff never made any demand on defendant, but stood by, with knowledge of his claim, and allowed and induced

23 Madden v. Occidental S. S. Co., 86 Cal. 445, 25 Pac. 5; Barth v. Deuel, 11 Colo. 494, 19 Pac. 471; Young v. Martin, 3 Utah, 484, 24 Pac. 909; Lonkey v. Wells, 16 Nev. 271.

24 Garver v. Lynde, 7 Mont. 108, 14 Pac. 697. See Goschwander v. Cort, 19 Or. 513, 26 Pac. 621.

25 Thalheimer v. Crow, 13 Colo. 397, 22 Pac. 779.

26 Powell v. Dayton R. R. Co., 14 Or. 22, 12 Pac. 83.

27 Corson v. Neatheny, 9 Colo. 212, 11 Pac. 82.

28 Herold v. Smith, 34 Cal. 122. 20 Hunter v. Porter, 10 Idaho, 72, 77 Pac. 434.

80 Kreichbaum v. Melton, 49 Cal. 50. 81 Quinn v. Smith, 49 Cal. 163; Coulthurst v. Coulthurst, 58 Cal. 239; Collins v. Bartlett, 44 Cal. 371.

defendant to sell the property, does not state a counterclaim.32 If the counterclaim must be existing at the time of the commencement of the action, it is not enough to allege that at that time plaintiff was indebted in a certain sum on a contract, as the liability may not have matured at that time.33

Defendant's answer and counterclaim may be in conflict, and if defendant secures judgment for specific performance on his counterclaim, it matters not that his answer had alleged that all plaintiff's rights had been forfeited before.34 The counterclaim should contain the substantial requirements of a complaint, and it is not well pleaded where joined with the other parts of the defense. 35

§ 668. Commencement and conclusion. It is proper that each defense should indicate distinctly, by fit and appropriate words, where it commences and where it concludes.36 An objection to an answer on the ground that separate defenses are not separately stated cannot be taken by demurrer. The defect can only be reached by a motion to strike out, or by some other appropriate proceeding. But no formal commencement or conclusion is prescribed. The title of a cause is not a part of a plea.39

38

40

§ 669. Each defense must be complete.-One defense cannot refer to another in the same answer for support. But it was held in Rice v. O'Connor, (10 Abb. Pr. 362) that several defenses in one statement is not bad on demurrer. Upon a demurrer to a distinct defense, stated separately in an answer, no resort can be had to other portions. of the answer to sustain such defense; for each defense must be complete in itself." In a complaint containing more than

82 Babcock v. Maxwell, 29 Mont. 31, 74 Pac. 64.

33 Provident Mut. Building etc. Assoc. v. Davis, 143 Cal. 253, 76 Pac. 1034; Cal. Code Civ. Proc., § 438.

34 Finlen v. Heinze, 28 Mont. 548, 73 Pac. 123.

35 LeClare v. Thibault, 41 Or. 601, 69 Pac. 552.

36 Lippencott v. Goodwin, 8 How. Pr. 242; Benedict v. Seymour, 6 How. Pr. 298.

37 Hagely v. Hagely, 68 Cal. 348, 9 Pac. 305.

88 Bridge v. Payson, 5 Sandf. 210. 39 Bank of Columbia v. Ott, 2 Cranch C. C. 529, Fed. Cas. No.

878.

40 Xenia Branch Bank v. Lee, 2 Bosw. 694, 7 Abb. Pr. 372; Spencer v. Babcock, 22 Barb. 326, Moore v. Halliday, 43 Or. 243, 99 Am. St. Rep. 724, 72 Pac. 801.

41 Siter v. Jewett, 33 Cal. 92; Xenia Branch Bank v. Lee, 7 Abb. Pr. 372; Loosey v. Orser, 4 Bosw. 391; Jackson v. Van Slyke, 44 Barb. 116, note.

one count, the introductory matter, such as partnership capacity of the parties, need not be repeated, but may be incorporated in subsequent counts by paragraphs, by reference thereto. One separate defense, if defective in any material averment, cannot. be aided by the averments of another separate defense.43 An answer cannot be aided by extrinsic facts." When the complaint contains more than one cause of action, the answer should indicate to which cause of action each defense is interposed. If the substance of the defense clearly shows to which cause of action it is addressed, it is sufficient on demurrer. If one of several pleas of a defendant going to the whole cause of action is sustained, it bars recovery by the plaintiff, notwithstanding some other issues may be found in favor of the plaintiff."

45

§ 670. Joint answer.—A joint answer to a bill in chancery, if sworn to by all the parties, is sufficient; a joint and several form is not indispensable. Where a joint answer of several defendants denies an allegation in the complaint which the plaintiff must prove to establish his cause of action against some of the defendants, but which he need not prove to entitle him to recover against the others, the answer raises material issue for the defendants as to whom the plaintiff must prove such allegation. Where a plea states that the defendants come and defend, etc., it will be construed that all defendants are joined.50

51

49

§ 671. Must be consistent.-Several defenses may be set up in an answer, but generally, if they are contradictory, it is bad.52A sworn answer must be consistent, and not deny in one sentence

42 Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201; Sly v. Palo Alto Gold Min. Co., 28 Wash. 485, 68 Pac. 871.

43 Catlin v. Pedrick, 17 Wis. 88.

44 Beers v. Dalles City, 16 Or. 334. As to reference to separate defense in answer, see Yost v. Commercial Bank of Santa Ana, 94 Cal. 494, 29 Pac. 858. 45 Kneedler v. Sternbergh, 10 How. Pr. 67.

46 Willis v. Taggard, 6 How. Pr. 435

47 Curtis v. Jones, 1 How. App. Cas. 137. What judgment should be rendered when one of two pleas is

found for the plaintiff, and the other for the defendant. See Dorsey v. Chenault, 2 Cranch C. C., 316, Fed. Cas. No. 4013; Kerr v. Force, 3 Cranch C. C. 8, Fed. Cas. No. 7730.

48 Davis v Davidson, 4 McLean, 136, Fed. Cas. No. 3631.

49 Bank of Cooperstown v. Corlies, 1 Abb. Pr. (N. S.) 412. Denial of joint liability and admission of individual liability. Se Gruhn v. Stanley, 92 Cal. 86, 28 Pac. 56.

50 Kerr v. Swallow, 33 Ill. 379.

51 Cal. Code Civ. Proc., § 441.

52 Bell v. Brown, 22 Cal. 671; Hopper v. Hopper, 11 Paige, 46.

53

what it admits in another sentence. Several defenses, inconsistent with each other, may, under proper circumstances, be set up in a verified answer.54 But where an answer is susceptible of being construed to contain either of two defenses, one of payment and the other of counterclaim, it should be construed as setting up only the defense of payment, and requiring no reply.55 The inconsistent defenses which are allowed to be pleaded in a verified answer are not such as require in their statement a direct contradiction of any fact elsewhere directly averred. They are those in which the inconsistency arises rather by implication of law, being in the nature of pleas of confession and avoidance, as contradistinguished from denials where the party impliedly or hypothetically admits, for the purpose of that particular defense, a fact which he, notwithstanding, insists does not in truth exist." If no objection be taken to an answer, by a motion to strike out or by demurrer, which sets up inconsistent defenses, defendant may, on the trial, rely on any one of such defenses.57 If a defendant in his answer admits a material allegation of the complaint, he cannot afterwards contest it.58

8

§ 672. Inconsistent defenses.-Separate defenses to a cause of action are not inconsistent when they all, taken together, may be true; but when the truth of some of them cannot be maintained without falsifying others, they are inconsistent," and defendant is entitled to present and rely upon any of such defenses upon the trial, subject to proper instructions as to their effect in each case; 60 and it is error for the court to

53 Kuhland v. Sedgwick, 17 Cal. 123; Hensley v. Tartar, 14 Cal. 508; Seattle Nat. Bank v. Carter, 13 Wash. 281, 43 Pac. 331, 48 L. R. A. 177; Robinson v. Stewart, 10 N. Y. 189; Storer v. Coe, 2 Bosw. 662; Manice v. New York Dry Dock Co., 3 Edw. Ch. 143; Willet v. Metropolitan Ins. Co., 2 Bosw. 678.

51 Bell v. Brown, 22 Cal. 671. See Eppinger v. Kendrick, 114 Cal. 620, 46 Pac. 613. But compare Seattle Nat. Bank v. Carter, 13 Wash. 281, 43 Pac. 331, 48 L. R. A. 177.

55 Burke v. Thorne, 44 Barb. 363. As to inconsistencies in the answer, see Hollenbeck v. Clow, 9 How. Pr. 289; Lansingh v. Parker, 9 How. Pr.

288; Stiles v. Comstock, 9 How. Pr. 48.

56 Bell v. Brown, 22 Cal. 671. 57 Klink v. Cohen, 13 Cal. 623; Uridias v. Morrell, 25 Cal. 35.

58 Howard V. Throckmorton, 48 Cal. 482. See, also, Spanagel v. Reay, 47 Cal. 608.

59 McDonald V. American Mort. Co., 17 Or. 626, 21 Pac. 883; Snodgrass v. Andross, 19 Or. 236, 23 Pac. 969; Randall v. Simmons, 40 Or. 554, 67 Pac. 513; Herbert Craft Co. v. Bryan (Cal. 1902), 68 Pac. 1020; Murphy v. Russell, 8 Idaho, 133, 67 Pac. 421.

60 Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871.

63

compel defendant to elect one of the defenses upon which alone. to make a stand.61 General denial, and that the alleged cause of action is barred by the statute of limitations, are not legally inconsistent with each other.62 So, in an action upon a lease, a defense that the defendant was merely a tenant from month to month is not inconsistent with a defense that by reason of acts and omissions of the plaintiff, amounting to an eviction, the defendants were compelled to remove from the premises. Inconsistent pleas are admissible in an answer under Wyoming practice. The pleas of non est factum and non assumpsit are not so inconsistent as to make them inadmissible. An objection. that an answer contains inconsistent defenses cannot be taken by demurrer. The remedy is by motion to strike out, or to require the party pleading to elect between them. Where a defendant denies the execution or delivery of a note, and in a separate defense alleges that the same note was made with a fraudulent intent, the execution of the note is admitted, since the two statements are utterly inconsistent."

64

67

66

65

§ 673. Prayer in answer.-In an action to recover personal property, or to obtain the value of the property on judgment of dismissal against the plaintiff for failure to appear, the answer must contain some allegation or prayer relative to the change of possession from defendant to plaintiff. A formal prayer is not necessary in an answer, when no counterclaim is set up."

68

69

§ 674. Separate answer. In actions against several defendants, each may answer separately.70 But dilatory defenses must

61 Horton v. Driskell, 13 Wyo. 66, 77 Pac. 354; Fleishman v. Meyer, 46 Or. 267, 80 Pac. 209.

62 Lawrence v. Peck, 3 S. Dak. 645, 54 N. W. 808. See McCormick v. Kaye, 41 Mo. App. 263; Barnes v. Scott, 29 Fla. 285, 11 South. 48.

63 Kline v. Hanke, 14 Mont. 361, 36 Pac. 454.

64 Lake Shore etc. R. R. Co. v. Warren, 3 Wyo. 134, 6 Pac. 724. So in South Dakota: Stebbins v. Lardner, 2 S. Dak. 127, 48 N. W. 847. See, also, Billings v. Drew, 52 Cal. 565; Bruce v. Burr, 67 N. Y. 240; Pavey v. Pavey, 30 Ohio St. 600; Clarke v. Lyon Co., 7 Nev. 75; State v. Rogers, 79 Mo. 283; Hall v. Clement, 41 N. H. 166.

Contra, Seattle Nat. Bank v. Carter, 13 Wash. 281, 43 Pac. 331, 48 L. R. A. 177.

65 Staab v. Jaramillo, 3 N. Mex. 33, 1 Pac. 170.

66 Caldwell v. Ruddy, 2 Idaho, 5, 1 Pac. 339. Compare Lynch V. Richter, 10 Wash. 486, 39 Pac. 125. See, as to inconsistent defenses, Olympia v. Stevens, 15 Wash. 601, 47 Pac. 11; Pugh v. Oregon Imp. Co., 14 Wash. 331, 44 Pac. 547, 689; Corbitt v. Harrington, 14 Wash. 197, 44 Pac. 132. 67 Maxwell v. Bolles, 28 Or. 1, 41 Pac. 661.

68 Gould v. Scannell, 13 Cal. 430. 69 Bendit v. Annesley, 42 Barb. 192 70 2 Saund. Pl. & Ev. 18, 19.