demanded."101

Where, however, the allegation of the plaintiff is itself couched in the form of a conclusion of law, a denial in the same form will be admissible, and efficient for all purposes.102 A mixed question of law and facts was under the old system traversable.103 Within certain limits this rule is applicable to the present system. As where plaintiff alleged that defendant owed him a certain sum, an answer denying the indebtedness is sufficient. 104 A denial which is itself a conclusion of law raises no issue, as where an answer states in general terms that a municipal ordinance is illegal and void.108

§ 3176. Sham, irrelevant, and frivolous answers. Sham and irrelevant answers, and irrelevant and redundant matter inserted in a pleading, may be stricken out, upon such terms as the court may, in its discretion, impose.106 Immaterial averments in a pleading need not be denied;107 and if it be done, both the complaint and answer, so far as they relate thereto, will be disregarded when the sufficiency of the pleadings and issues are brought in question.108 Such was the rule in chancery, 100 But a denial of immaterial circumstances may in some cases be treated as sufficient at the trial, if not previously objected to 110

Matter not well pleaded need not be denied. For if a defendant merely denies what is nonessential in the averments of

101 Drake v. Cockroft, 1 Abb. Pr. 203; and compare Higgins v. Freeman, 2 Duer, 650.

102 Morrow v. Cougan, 3 Abb. Pr. 328; Anonymous, 2 Code R. 67; Wager v. Ide, 14 Barb. 468; Davis v. Hoppock, 6 Duer, 256; McKnight v. Hunt, 3 id. 615.

103 Steph. Pl. 19.

104 Westlake v. Moore, 19 Mo. 556; but see Kinney v. Osborne, 14 Cal. 112.

105 People v. Supervisors of San Francisco, 27 Cal. 655. Allegations in answer merely stating conclusions of law. See Monroe v. Fohl, 72 Cal. 568; Richards v. Dower, 31 id. 44; Balfour v. Davis, 14 Oreg. 47.

106 Cal. Code Civ. Pro., § 453; see Frost v. Harford, 40 Cal. 166; Felch v. Beaudry, id. 444; Davis v. Water Co., 98 id. 417; Sherman v. Boehm, 13 Daly, 42.

107 Racouillat v. Rene, 32 Cal. 450; Toland v. Sprague, 12 Pet. 300. 108 Jones v. City of Petaluma, 36 Cal. 230; Doyle v. Franklin, 48 id. 539; see, also, Fry v. Bennett, 5 Sandf. 54.

109 Utica Ins. Co. v. Lynch, 3 Paige Ch. 210; Wiswall v. Wandell, 3 Barb. Ch. 312.

110 Wall v. Buffalo Water Works Co., 18 N. Y. 119.

Vol. II-71

a complaint, it is an admission of all that is essential to a recovery, 111 and the denial of such averments is unnecessary.112 Nonissuable matter need not be traversed.113 Hypothetical allegations in an answer are insufficient.114 But where, under the peculiar circumstances of the case, a payment could not be directly alleged, it might be stated in this way.115 So, in order to avoid the cause of action alleged, a defendant need not confess it; he may aver that if any such contract was made, it was made jointly with others.116 Averment of plaintiff's belief is not traversable.117 Allegations anticipating a defense need not be denied.1 118 Persons who make contracts with a corporation can not deny its legal existence.119 The credit given on an account in the complaint is not a traversable fact.120

The amount of damages need not be denied.121 So the amount of damages on a breach of covenant need not be denied.122 So circumstances of aggravation are not traversable.123 Nor allegations of special damages, unless of the gist of the action.124 In Indiana matters in mitigation of damages only, except in actions for libel and slander, can not be specially

111 Leffingwell v. Griffin, 31 Cal. 231; for example, see Landers v. Bolton, 26 id. 416; Camden v. Mullen, 29 id. 564.

112 Sands v. St. John, 23 How. Pr. 140; Fry v. Bennett, 5 Sandf. 54; Parshall v. Tillou, 13 How. Pr. 7; Newman v. Otto, 4 Sandf. 668; Doran v. Dinsmore, 33 Barb. 86; S. C., 20 How. Pr. 503; Simonton v. Winter, 5 Pet. 140; Greathouse v. Dunlop, 3 McLean, 303.

113 Harbeck v. Craft, 4 Duer, 122; Edgerton v. Smith, 3 id. 614. 114 Wies v. Fanning, 9 How. Pr. 543.

115 Doran v. Dinsmore, 20 How. Pr. 503; Brown v. Ryckman, 12 id. 313.

116 Taylor v. Richards, 9 Bosw. 679.

117 Radway v. Mather, 5 Sandf. 654; Patterson v. Caldwell, 1 Metc. (Ky.) 492; Walters v. Chinn, id. 502.

118 Canfield v. Tobias, 21 Cal. 349.

119 White v. Ross, 15 Abb. Pr. 66; East River Bank v. Rogers, 7 Bosw. 494; Steam Navigation Co. v. Weed, 17 Barb. 378; Park Bank v. Tilton, 15 Abb. Pr. 384.

120 Hodgins v. Hancock, 14 Mee. & W. 120.

121 Van Santv. Pl. 249.

122 Hackett v. Richards, 3 E. D. Smith, 13; Raymond v. Traffarn, 12 Abb. Pr. 52.

123 Bates v. Loomis, 5 Wend. 134; Gilbert v. Rounds, 14 How. Pr. 49; Schnaderbeck v. Worth, 8 Abb. Pr. 37.

124 Malony v. Dows, 15 How. Pr. 265; Perring v. Harris, 2 M. & Rob. 5.

pleaded or set up in the answer, but should be given in evidence under the general denial.125 Allegations of matters of evidence in a pleading are not issuable facts. If the answer puts in issue the ultimate facts resulting from the evidence, it is a sufficient denial.126 Where plaintiffs' declaration averred that defendants promised to pay plaintiffs as "the heirs of C.," a denial that plaintiffs were the heirs of C. was held bad, as not denying any material allegation.127 Allegations of intention showing express malice are not issuable facts.128 The denial of time or

place at which an act is alleged to have been done is frivolous, where time or place are not the substance of the action.129 Value in detention of property should not be denied.130 In a verified answer an evasion of the controlling fact in issue is a strong circumstance against the defendant.131

In

A denial clearly evasive is insufficient to raise an issue.132 order to determine whether the denials of an answer are evasive, each separate denial of each separate allegation must be taken by itself. If the answer to a particular allegation is a denial of it, and there is no admission in the answer inconsistent with this denial, an issue is fairly made.133 If a cause is tried upon the theory that the answer denies the allegation of the complaint, the plaintiff will not be permitted to raise the objection

125 Smith v. Lisher, 23 Ind. 500.

126 Moore v. Murdock, 26 Cal. 524; Racouillat v. Rene, 32 id. 450. 127 Chandler v. Chandler, 21 Ark. 95.

128 Fry v. Bennett, 5 Sandf. 54.

129 Castro v. Wetmore, 16 Cal. 379; Kuhland v. Sedgwick, 17 id. 123; Livingston v. Hammer, 7 Bosw. 670; Davison v. Powell, 16 How. Pr. 467; Baker v. Bailey, 16 Barb. 54; Salinger v. Lusk, 7 How. Pr. 430.

130 Connoss v. Meier, 2 E. D. Smith, 314; McKensie v. Farrell, 4 Bosw. 193; Woodruff v. Cook, 25 Barb. 505; see, however, Archer v. Boudinet, 1 Code R. (N. S.) 373. As to where a denial upon information and belief is evasive of the issue tendered, see Humphreys v. McCall, 9 Cal. 59; 70 Am. Dec. 621; Brown v. Scott, 25 Cal. 194; Vassault v. Austin, 32 id. 597; Edwards v. Lent, 8 How. Pr. 28; Ketchum v. Zerega, 1 E. D. Smith, 554; Kellogg v. Baker, 15 Abb. Pr. 287; Taylor v. Luther, 2 Sumn. 228.

131 Baker v. Baker, 13 Cal. 87.

132 Beebe v. Marvin, 17 Abb. Pr. 194; Lawrence v. Derby, 24 How. Pr. 133; note 15 Abb. Pr. 346.

133 Racouillat v. Rene, 32 Cal. 450. In a case where a general denial may be interposed, if the pleader does not plead it, but resorts to specific denials, such specific denials must be actual denials, and not evasive. Marsters v. Lash, 61 Cal. 622.

in the Supreme Court, that the answer is insufficient in this respect.134 An answer containing a different version of the transaction to that contained in the complaint is not a denial,135 as it does not specially controvert the allegations contained in the complaint.136 Where a defendant gives a different version of the matter in controversy, it should be accompanied by a specific denial of all the allegations of the complaint not consistent with the allegations in the answer. 137 A denial manifestly inconsistent with statements of fact in other parts of the same pleading is bad. 138 A mere denial of interest or ownership in the plaintiff will be insufficient where no statement of fact is made to sustain it.139 Where a negative allegation is necessary in stating the cause of action, although it must, of course, precede an averment by the opposite party of the fact negatived, it nevertheless constitutes the basis of the issue joined by the subsequent averment, and the latter operates as a traverse, and not as an averment of new matter.140 A denial which argumentatively disputes a fact averred in the complaint is demurrable, as the traverse must be direct.141 Denials must not be in the alternative, as they are defective in form, and leave it uncertain what is denied.142 A party can not controvert the declaration he has made by deed. 143 Under the provisions of section 453, California Code of Civil Procedure, denials contained in an answer, which do not explicitly traverse the material allegations of the complaint, may be stricken out on motion as sham and irrelevant.144 Although a general denial of the allegations of the complaint may, if falsely pleaded, be characterized as sham,

.

134 Whyte v. S. R. & S. Q. R. R. Co., 50 Cal. 417.

135 West v. American Ex. Bank, 44 Barb. 176.

136 Wood v. Whiting, 21 Barb. 190; Levy v. Bend, 1 E. D. Smith, 169; Hamilton v. Hough, 13 How. Pr. 14; Corwin v. Corwin, 9 Barb. 219; Loosey v. Orser, 4 Bosw. 392; see, as to its implying a denial of plaintiff's title to relief, Peck v. Brown, 26 How. Pr. 350. 137 Compare Dykers v. Woodward, 7 How. Pr. 313. 138 Livingston v. Harrison, 2 E. D. Smith, 197.

139 Russell v. Clapp, 7 Barb. 482; S. C., 4 How. Pr. 347.

140 Frisch v. Caler, 21 Cal. 71.

141 Gallagher v. Dunlap, 2 Nev. 326; Mower v.

7; Frisbee v. Lindley, 23 Ind. 511.

Burdick, 4 McLean,

142 Otis v. Ross, 8 How. Pr. 193; Corbin v. George, 2 Abb. Pr. 467.

143 Tartar v. Hall, 3 Cal. 263; United States v. Thompson, 1 Gall.

144 Tynan v. Walker, 35 Cal. 634; 95 Am. Dec. 152.

yet an inquiry in advance of the trial can not be entertained by the court as to the good faith of the defendant in pleading it, nor can it be stricken out as a sham on the application of the plaintiff.145 In an action for the breach of a contract to clear certain land of standing timber so as to fit it for seeding, an answer which admits the contract, but denies a breach thereof, and shows affirmatively that the defendants were proceeding with due performance thereof according to its terms until requested by the plaintiffs to desist from so doing, can not be said to be either sham, frivolous, or immaterial.146 Where an answer shadows forth a good defense, but states it imperfectly, the defect should be met by a motion calling for an amendment curing such defect, and not by motion for judgment on the answer as frivolous.147 A frivolous answer is one so clearly and palpably bad as to require no argument or illustration to show its character, and which would be pronounced frivolous and indicative of bad faith in the pleader upon a bare inspection.148 A general denial of the material allegations of a complaint can not be stricken out on the ground that it is sham or frivolous pleading.149 And an answer containing an absolute and unqualified denial of one or more material allegations of the complaint is not demurrable as not stating facts sufficient to constitute a defense.150

§ 3177. Admissions in the answer. But no proof is required of facts admitted, or not denied.151 An admission in an answer is not avoided by a special averment of immaterial matter.152 If the answer contains several defenses stated separately, an admission made in one answer, for the purpose of pleading a separate defense, does not destroy the effect of a denial of the matter thus admitted in another answer. 153 In

145 Fay v. Cobb, 51 Cal. 313; and see Larson v. Winder, 14 Wash. St. 647.

146 Brown v. Porter, 7 Wash. St. 327.

147 Yerkes v. Crum, 2 N. Dak. 72.

148 Strong v. Sproul, 53 N. Y. 499; Cottrill v. Cramer, 40 Wis. 555; Bank of Commerce v. Humphrey, 6 S. Dak. 415.

149 Larson v. Winder, 14 Wash. St. 647; State ex rel. v. King, 6 S. Dak. 297.

150 Hill v. Walsh, 6 S. Dak. 421.

151 Cal. Code Civ. Pro., § 462; Patterson v. Ely, 19 Cal. 28; Burke v. McDonald, 2 Idaho, 646; Teller v. Hartman, 16 Col. 447; Putnam v. Lyon, 3 Col. App. 144: City of Denver v. Soloman, 2 id. 534. 152 Reed v. Calderwood, 32 Cal. 109.

163 Siter v. Jewett, 33 Cal. 92; Swift v. Kingsley, 24 Barb. 541.