been the holding where the word "defendant" was used when "plaintiff" was intended;" where "property" was used instead of “plaintiff”; "defendant" for "defendants";57 "defendant" for "decedent",58 "east" for "west."59 55 Johnson v. Missouri Pacific Ry. Co., 96 Mo. 340, 9 Am. St. Rep. 351, 9 S. W. 790. 56 Ross v. Banta, 140 Ind. 120, 34 N. E. 865, 39 N. E. 732. 57 Monmouth & Co. v. Erling, 148 Ill. 521, 39 Am. St. Rep. 187, 36 N. E. 117; German Exch. Bank v. New Jer sey etc. Co., 13 Misc. 192, 34 N. Y. Supp. 133. 58 Kenney v. New York etc. R. R., 49 Hun, 535, 2 N. Y. Supp. 512, 15 Civ. Proc. Rep. 347. 59 Praigg v. Western etc. Co., 143 Ind. 358, 42 N. E. 750. CHAPTER X. ALLEGATIONS. § 94. Allegations of facts.-In view of what has already been said, it is perhaps superfluous to say that pleadings are statements of facts; that they should be nothing else.1 The character and sufficiency of a pleading are to be determined by the facts which it alleges, not by what is denominated by the pleader. The code system of procedure makes substance, not form, the thing to be desired, and it is in harmony with this idea that facts, and not forms, are made the essential requisites of good pleading, although approved forms may aid the pleader in setting forth the facts upon which the right claimed depends.3 The reasons for the existence of the facts alleged are not to be given, nor the evidence tending to prove them; but only the naked facts "disrobed of any circumstance connected with or pertaining to them." And they must be given without inferences or conclusions, arguments, hypothetical statements, or statements of the law, or of the pretenses of the opposite party. Evidence of the facts alleged pertains to the trial and has no place in a pleading." In this connection it may be well to note that, while statements of evidence in a pleading are not necessarily fatal if the opposite party fails to ask that such statements be stricken out, yet the failure to have them stricken out cannot have the effect of rendering competent, incompetent testimony set out in a pleading." § 95. Legal conclusions not to be alleged.-The rule we have just considered, that facts only should be stated, would of itself 1 Green v. Palmer, 15 Cal. 411, 76 Am. Dec. 492; Hicks v. Murray, 43 Cal. 515; Laffey v. Chapman, 9 Colo. 304, 12 Pac. 152; Robinson v. Dolores etc. Canal Co., 2 Colo. App. 17, 29 Pac. 750; Ilfeld v. Ziegler, 40 Colo. 401, 91 Pac. 825; Rio Grande etc. Ry. Co. v. Colo. Fuel etc. Co., 41 Colo. 3, 91 Pac. 1114; St. Mary's Hospital v. Perry, 152 Cal. 338, 92 Pac. 864; In re Lennon's Estate, 152 Cal. 327, 125 Am. St. Rep. 58, 92 Pac. 870; Streator v. Linscott, 153 Cal. 285, 95 Pac. 42; Bogardus v. New York Life 3 Cramer v. Oppenstein, 16 Colo. 495, 27 Pac. 713. 4 Estee's Pl. & Pr., § 184. 5 Simons v. Bedell, 122 Cal. 341, 68 Am. St. Rep. 35, 55 Pac. 3; Rio Grande etc. Ry. Co. v. Colorado Fuel etc. Co., 41 Colo. 3, 91 Pac. 1114. 6 Ireton v. Ireton, 59 Kan. 92, 52 Pac. 74. make a statement of a legal conclusion bad pleading, for an allegation of a legal conclusion states no fact, but matter of law only." Such an allegation can never add to the effect of a pleading. As we observed in a previous chapter, there is no objection to the statement of facts according to their legal effect, but that such a mode of stating facts is to be carefully distinguished from the statement of legal conclusions. The latter class of averments is not to be tolerated under the code practice; the facts from which the conclusions follow must be averred, but not the conclusions. And if such conclusions are averred and denied, no issue is raised; if they are not denied, they are not admitted." "If counsel were permitted to aver conclusions of law, pleadings might be valuable as briefs, but worthless as statements of facts, the latter being the only object of pleadings." 10 A pleading is not to be disregarded, however, because it improperly contains allegations of legal conclusions, if such conclusions are correct and properly deducible from the facts which are set out in the pleading." In such a case the essential things, the facts, are averred. § 96. What are conclusions of law-Examples.-A conclusion of law has been defined as one which gives no fact, but matter of law only.12 This definition, however, while strictly correct, is of little value to a pleader endeavoring to avoid the error we are considering. Indeed, any concise definition that may be framed, must be an unsafe guide to the distinction between a conclusion of law and an issuable fact. It must be remembered that it is not the presence of a legal conclusion in a pleading alone that makes the pleading objectionable, but the fact that a legal conclusion unnecessarily stated is not accompanied by the statement of necessary facts. In any case a legal conlusion, although it be correct, is surplusage, and will be disregarded by the court,13 or be stricken out upon 7 Hatch v. Peet, 23 Barb. 583; Ollis v. Orr, 6 Idaho, 474, 56 Pac. 162; Bransford v. Norwich Union Fire Ins. Soc., 21 Colo. 34, 39 Pac. 419. 8 Downing v. Agricultural Ditch Co., 20 Colo. 546, 39 Pac. 336. 9 Levinson v. Schwartz, 22 Cal. 229; Lightner v. Menzel, 35 Cal. 460; Gale v. James, 11 Colo. 542, 19 Pac. 446; Lake v. Steinbach, 5 Wash. 663, 32 10 Estee's Pl. & Pr., § 185. 11 Texas etc. Ry. Co. v. Kirk, 62 Tex. 227. 12 Hatch v. Peet, 23 Barb. 583. 13 Jones v. Phoenix Bank, 8 N. Y. 228; Board of Education v. Shaw, 15 Kan. 33; Spargur v. Romine, 38 Neb. motion as irrelevant and redundant matter.14 As was said in a California case,' 15 such statements "will be treated as if they were not made, because, so far as they are correct, they are useless, and when erroneous, worse than useless." So where the essential facts are set out a pleading is not vitiated by the added statement of a conclusion of law. § 97. Examples of conclusions of law. The meaning of the term can better be shown by examples than by any definition. The following are some of the most common allegations which, when unaccompanied by supporting facts, are declared by the courts to be objectionable: 19 Assent: The knowledge and assent of a party;16 that a partner assented to the making of a note by his copartner.17 Assignment: That a person is not the "legally appointed assignee. "'18 Authority: That an officer had or had not authority to do certain acts.1 Bona fide holder: That a person is the holder and owner of a note.20 Bound: That one is bound to do certain things,21 or is bound by a judgment.22 Capacity: An allegation in a complaint to set aside a deed, that the grantor was of unsound mind. 23 Contrary to law: That a person has acted contrary to law. Credit: That goods were purchased on credit, and the term of credit has not expired.25 Divorce: The acts and conduct relied on as cruel treatment should be stated.26 Damage: That an act will result in great and irreparable damage.27 Due: That a sum is due and owing.28 Duly: 736, 57 N. W. 523; Ohm v. San Francisco, 92 Cal. 437, 28 Pac. 580. 14 Longshore Printing Co. v. Howell, 26 Or. 535, 46 Am. St. Rep. 640, 38 Pac. 547, 28 L. R. A. 464; Payne v. Treadwell, 16 Cal. 246; Dyer v. Bradley, 89 Cal. 560, 26 Pac. 1103; People v. Lathrop, 3 Colo. 452. 15 Ohm v. San Francisco, 92 Cal. 449, 28 Pac. 580. 16 Moore v. Westervelt, 2 Duer, 59, 1 Bosw. 537, 21 N. Y. 103. 17 Kemeys v. Richards, 11 Barb. 312. 18 Smith v. Kaufman, 3 Okla. 568, 41 Pac. 722. 19 Hentrager v. Richter, 85 Iowa, 222, 52 N. W. 188. 20 White v. Brown, 14 How. Pr. 282. 24 21 Berley v. Newton, 10 How. Fr. 490; Casey v. Mann, 5 Abb. Pr. 91. 22 People v. Board of Supervisors, 27 Cal. 655; People v. Commissioners, 11 How. Pr. 89. 23 Batman v. Snoddy, 132 Ind. 480, 32 N. E. 327. 24 Smith v. Lockwood, 13 Barb. 209. 25 Levinson v. Schwartz, 22 Cal. 229. 26 Hubbell v. Hubbell, 7 Cal. App. 661, 95 Pac. 664. 27 McCormick v. Riddle, 10 Mont. 470, 26 Pac. 202; Mechanics' Foundry v. Ryall, 75 Cal. 601, 17 Pac. 703; Thorn v. Sweeny, 12 Nev. 251. 28 Frisch v. Caler, 21 Cal. 71; Ryan v. Holliday, 110 Cal. 335, 42 Pac. 891; McKyring v. Ball, 16 N. Y. 303, 69 Am. Dec. 696. 34 37 That a person was duly appointed,29 or duly authorized;30 that a location was duly made.31 Duty: That it was or is a person's duty to do certain acts.32 Effect: The effect of certain acts or omissions.33 Forfeiture: That certain acts or omissions operated as a forfeiture of a right. Fraud or mistake: A general allegation of fraud or mistake as a ground of action or defense.35 Heirship: The naked averment of heirship or relationship.36 Indebted: That a party is indebted or remains indebted, or a denial of indebtedness.38 Legality: Averments of illegality or invalidity of certain acts, or that a will is contrary to a certain statute.40 Lien: That a person has or had a valid lien.41 Obligation: That certain duties. or obligations exist, or that they have not been performed.42 Performance: That there has been a due performance of certain acts.* Power: That a corporation had power to do certain acts. Priority: The bare allegation of priority of right. Possession: That one is in possession by virtue of a certain deed, to show title.46 39 29 Cruger v. Holliday, 3 Edw. Ch. 565. 30 Myers v. Machado, 14 How. Pr. 149. 31 People v. Jackson, 24 Cal. 632. 82 Wilson v. Baillargeon etc. Co., 54 Ill. App. 250; Biron v. St. Paul Water Commrs., 41 Minn. 519, 43 N. W. 482; Coffin v. Grand Rapids etc. Co., 136 N. Y. 655, 32 N. E. 1076. 33 Wheeler v. Floral etc. Co., 9 Nev. 254; Wainwright v. Queens County Water Co., 78 Hun, 146, 28 N. Y. Supp. 987. 34 Dutch Flat Water Co. v. Mooney, 12 Cal. 534. 35 Sukeforth v. Lord, (Cal.) 23 Pac. 296; Dyer v. Bradley, 89 Cal. 577, 26 Pac. 1103; Baker-Boyer Nat. Bank v. Hughson, 5 Wash. 100, 31 Pac. 423. And see Robinson v. Dolores etc. Canal Co., 2 Colo. App. 17, 29 Pac. 750. 36 Stephani v. Stephani, 75 Hun, 188, 26 N. Y. Supp. 1039; Public Admr. v. Watts, 1 Paige, 348. But see Physio-Medical College v. Wilkinson, 108 Ind. 314, 9 N. E. 167. 37 Wells v. McPike, 21 Cal. 215; Curtis v. Richards, 9 Cal. 33; Butts v. Phelps, 79 Mo. 302; California State Tel. Co. v. Patterson, 1 Nev. 150. 38 McConoughey v. Jackson, 101 P. P. F. Vol. I-6 45 44 43 Release: Cal. 265, 35 Pac. 863, 40 Am. St. Rep. 53; Gale v. James, 11 Colo. 540, 19 Pac. 446; Swanholm v. Reeser, 2 Idaho, 1167, 3 Idaho 476, 31 Pac. 804; Heath v. White, 3 Utah, 474, 24 Pac. 762. 39 Johnson v. Kirby, 65 Cal. 482, 4 Pac. 458; People v. Lothrop, 3 Colo. 428; Miller v. Hurford, 13 Neb. 13, 12 N. W. 832. 40 In re Lennon's Est., 152 Cal. 327, 125 Am. St. Rep. 58, 92 Pac. 870. 41 Shea v. Johnson, 101 Cal. 455, 35 Pac. 1023. 42 Van Schaick v. Winne, 16 Barb. 95; Wilson v. Baillargeon etc. Co., 54 Ill. App. 250; Biron v. St. Paul Water Commrs., 41 Minn. 519, 43 N. W. 482; Coffin v. Grand Rapids etc. Co., 136 N. Y. 655, 32 N. E. 1076. 43 McEntee v. Cook, 76 Cal. 187, 18 Pac. 258; Heavilon v. Farmers' Bank of Frankfort, 81 Ind. 249. 44 Branham v. Mayor of San Jose, 24 Cal. 585. 45 Shea v. Johnson, 101 Cal. 455, 35 Pac. 1023; Farmers' etc. Co. v. Southworth, 13 Colo. 111, 21 Pac. 1028, 4 L. R. A. 767; First Nat. Bank v. Myers, 44 Neb. 306, 62 N. W. 459. 46 Street v. Sederburg, 41 Colo. 128, 92 Pac. 682. |