The familiar common-law rule, that a pleading is to be construed most strongly against the pleader, has been somewhat relaxed by the codes. The California Code of Civil Procedure provides that in the construction of a pleading for the purpose of determining its effect its allegations must be liberally construed with a view to substantial justice between the parties. Similar provisions are to be found in the codes of other states. 10 And pleadings are to be construed with greater liberality when the parties go to trial on an issue of fact than when the sufficiency of the pleadings is tested by demurrer," or on motion.12 "Substantial justice," in this connection, means substantial justice to be ascertained and determined by fixed rules and positive statutes.1

13

It will be noticed that this rule of construction is given for the purpose of "determining the effect" of a pleading. It does not entirely abrogate the common-law rule of strict construction. That allegations should be liberally construed does not mean that the omission of substantial averments should be disregarded.1 In the absence of a special demurrer, if a complaint, or any allegation of a complaint, is capable of different constructions, that which the plaintiff gives it, or which the court finds necessary to support the action, will be given.15 But the failure to aver material facts, in a verified complaint especially, must be construed as implying that they do not exist, and therefore could not be averred;16 the law will not assume anything in favor of a party which has not been averred by him.17

Where the language of a pleading is ambiguous, after giving to it a reasonable intendment, it should be resolved against the pleader.18 This is especially true on appeal from a judgment rendered after refusal to amend; where a general and special demurrer to a complaint has been sustained, and the plaintiff has

Cal. Code Civ. Proc., § 452.

10 Or. B. & C. Codes, § 85; N. Y. Code Civ. Proc., § 159; Idaho Rev. Codes, § 4207; Nev. 1 Comp. Laws § 1133; Wash. Bal. Codes, § 94.

11 White v. Spencer, 14 N. Y. 247; St. John v. Northrup, 23 Barb. 26; Stutsman County v. Mansfield, 5 Dak. 78, 37 N. W. 304.

12 Wall v. Buffalo Water Works, 18 N. Y. 119.

13 Stevens v. Ross, 1 Cal. 95.

14 Callahan v. Laughran, 102 Cal. 476, 36 Pac. 835; Hildreth v. Montecito Creek Water Co., 139 Cal. 22, 72 Pac. 395; Spear v. Downing, 34 Barb. 523; Estee's Pl. & Pr., § 199.

15 Ryan v. Jacques, 103 Cal. 280, 37 Pac. 186.

16 Callahan v. Laughran, 102 Cal. 476, 36 Pac. 835.

17 Cruger v. Hudson River R. R. Co., 12 N. Y. 201.

18 J. Thompson & Sons Mfg. Co. v. Perkins, 97 Iowa, 607, 66 N. W. 874.

refused to amend, all ambiguities and uncertainties must be construed against him.19 A pleading which contains allegations both affirming and denying a particular fact carries falsehood on its face, and the court is justified in accepting as true the allegation most disadvantageous to the pleader.20 After verdict, however, when there has been no motion to make pleadings more definite and certain, they will be liberally construed to sustain the judgment.21

§ 86. Construction of verified pleadings. The general rules for the construction of pleadings apply, of course, as well to verified as unverified pleadings, the only possible difference being that in a case where a pleader undertakes to support his allegation of facts by his solemn oath the old rule of strict construction might be applied more closely. It must always be assumed that a pleader has stated his claim as strongly as he can safely do so, and the failure to aver material facts in a verified complaint must be construed as implying that they do not exist, and therefore could not be averred in a complaint under oath.22

Where an expression is capable of different meanings, that meaning should be taken which will support the allegation, rather than the one which would defeat it.23 And when a word has two meanings in law, differing in degree merely, it will be understood in its larger sense, unless it appears to be used in its narrower sense.24 In no case where the rule of strict construction is urged will it be applied if the result would be to make the pleading absurd.25

A verified pleading must be construed so as to make all its parts harmonize, if possible.26 The whole pleading must be construed together; and it is not proper to take an isolated sentence, separate it from its context, and give effect to it as an independent averment, unless upon the whole pleading it appears to have been

19 McIntyre v. Hauser, 131 Cal. 11, 63 Pac. 69.

20 Lasch v. Pickett, 36 Kan. 216, 12 Pac. 822.

21 Fisk v. Henarie, 13 Or. 156, 9 Pac. 322; Johnson v. Leonhard, 1 Wash. 564, 20 Pac. 591.

22 Callahan v. Laughran, 102 Cal. 476, 36 Pac. 835.

23 1 Chit. Pl. 237; Vernon V. Keyes, 4 Taunt. 492; Gage v. Acton, 1 Polk. 325; The King v. Stephens, 5 East, 244; Pender v. Dicken, 27 Miss. 252.

24 Miller v. Miller, 33 Cal. 353. 25 Marshall v. Shafter, 32 Cal. 176. 26 Ryle v. Harrington, 14 How. Pr. 59, 4 Abb. Pr. 421.

so intended. It has even been held that the plaintiff's complaint and reply should be read together, when not repugnant. to determine his intent.28: The demand for judgment and the summons may be consulted in case of doubt," and even the caption of a petition may be resorted to.30

31

General averments in a pleading must give way to specific averments.3 An averment of a legal conclusion at variance with an admitted fact will be disregarded. 32 So, where an action is brought on a written contract, which is set out in the complaint, such writing will control any allegation purporting to state the legal effect of the contract.3

33

27 Farish v. Coon, 40 Cal. 33; Bates v. Babcock, 95 Cal. 479, 29 Am. St. Rep. 133, 30 Pac. 605, 16 L. R. A. 745.

28 Lavery v. Arnold, 36 Or. 84, 58 Pac. 524, 57 Pac. 906.

29 Rodgers v. Rodgers, 11 Barb. 595; Sellar v. Sage, 12 How. Pr. 531; Chambers v. Lewis, 2 Hilt. 591.

30 McCloskey v. Strickland, 7 Iowa, 259.

81 Moyer v. Fort Wayne etc. Ry. Co., 132 Ind. 88, 31 N. E. 567; Dritt v. Snodgrass, 66 Mo. 286, 27 Am. Rep. 343; Spargus v. Romine, 38 Neb. 736, 57 N. W. 523.

32 Jones v. Phoenix Bank, 8 N. Y. 235; Robinson v. Stewart, 10 N. Y. 189.

33 Patrick V. Colorado Smelting Co., 20 Colo. 268, 38 Pac. 236.

CHAPTER IX.

FORMS OF ACTIONS.

§ 87. Forms of action abolished. Under the code system of procedure there is but one form of civil action. By this is meant that the formal distinctions between the different common-law actions, such as assumpsit, debt, covenant, trespass, etc., and also between actions at law and in equity, are swept away.1 Under the old practice it was necessary to decide what form of action must be resorted to in order to obtain the relief justified by the facts, and it was necessary to state this form of action in the writ and to adhere to it in the declaration. Accordingly, the pleader was required to determine before he had the writ issued what his form of action should be. In many cases this was no easy matter, and the consequences of mistake were often serious. The suitor was also required to determine whether he should resort to a court of law or a court of equity. Now, however, these formal distinctions are done away with, and the pleader is required only to state the facts which constitute his cause of action. He need not give his pleading any particular name if it state sufficient facts.3

The old rule was "form, and not substance"; the code rule is "substance, and not form." Whatever may be said by opponents of the code system of procedure, it is certain that a suitor no longer goes into court with the fear that he may possibly have given his form of action the wrong name, and dreading the consequences that such a misnomer may entail. As was said by the supreme court of California, "Under the Code of Practice, we have but one system of rules respecting pleadings, which governs all cases both at law and in equity. These rules are clearly laid down in the Practice Act; and although in construing that act we resort to former adjudications, and the old and well-established principles of pleadings at common law, yet the former distinctions between common law and equity pleadings no longer exist."

1 Miller v. Van Tassel, 24 Cal. 459; Tanderup v. Hansen, 5 S. Dak. 164, 58 N. W. 578.

2 See Estee's Pl. & Pr., § 179.

3 Mastin v. Bartholomew, 41 Colo. 328, 92 Pac. 682.

4 Bowen v. Aubrey, 22 Cal. 570; Cordier v. Schloss, 12 Cal. 143; Payne

Legal and equitable remedies may now be sought in the same action, where they relate to the same subject-matter. The nature of a cause of action is to be determined rather from the object and purpose of the suit than from the character of the evidence which is necessary to sustain it. It was the intention of the legislature to adopt a "uniform and complete system," whereby the old and cumbersome forms of pleading would be dispensed with. And it has been held that although an action is an equitable one, yet where there is nothing to give a court of equity jurisdiction thereof, the court may permit it to be tried as an action at law, if the defendant is not thereby prevented from having a fair trial." It is error, however, to compel the trial of a cause as an action at law where both the complaint and answer invoke the equity powers of the court.

8

It was the object of the codes to make the procedure uniform. in all ordinary cases in law and equity. But while the system of pleading thus introduced contemplates plainness of averment and a clear and logical statement of the matters relied upon, it would be a mistake to conclude that an absolute departure from the common-law forms was intended. The codes abolish the distinctions between the forms of action, but not the substantial rules of pleading of the common law."

Nor should it be inferred from what has been said that the abolishment of the distinction between the forms of a bill in chancery and the common-law declaration has obliterated the essential and inherent distinctions between law and equity as two separate sciences.10 "What was an action at law before the code,

still an action founded on legal principles; and what was a bill in equity before the code, is still a civil action founded on principles of equity." "11 Such has been the holding in decisions under

v. Treadwell, 16 Cal. 243; Rowe v. Blake,99 Cal. 167, 37 Am. St. Rep. 45, 33 Pac. 864; and see Wadsworth v. Union Pacific Ry. Co., 18 Colo. 600, 36 Am. St. Rep. 309, 33 Pac. 515, 23 L. R. A. 812.

5 Murphy v. Crowley, 140 Cal. 141, 73 Pac. 820.

6 Humiston v. Smith, 21 Cal. 134. 7 Surber v. Kittinger, 6 Wash. 240, 33 Pac. 507. See, also, Kleeb v. Bard, 7 Wash. 41, 34 Pac. 138.

8 Distler v. Dabney, 7 Wash. 431, 35 Pac. 138, 1119.

> Sampson v. Shaeffer, 3 Cal. 196; Baltzell v. Nosler, 1 Iowa, 588, 63 Am. Dec. 466; Stirling v. Garritee, 18 Md. 468; Knowles v. Gee, 8 Barb. 300, 4 How. Pr. 317; Faulkner v. First Nat. Bank, 130 Cal. 258, 62 Pac. 463.

10 Dewitt v. Hays, 2 Cal. 464, 56 Am. Dec. 352; Smith v. Rowe, 4 Cal. 6; Wiggins v. McDonald, 18 Cal. 127.,

11 Estee's Pl. & Pr., § 179; Hurlbutt v. N. W. Spaulding Saw Co., 93 Cal. 55, 28 Pac. 795; Richardson v. City of Eureka, 110 Cal. 441, 42 Pac.