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a general denial as to the rest,27 or as to all within certain specified folios.28 Where the facts alleged were presumptively within the defendant's knowledge, he must admit or deny positively, unless there be something special in the circumstances of the case. 29 So held in action for assault.30 So of bond executed by defendant as surety.31 So in contract, where complaint specifically alleges contract.32 So in defendant causing process to issue.33 So of fact admitted by original defendant.34 So of goods sold and delivered to partner.

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§ 3190. General denial as to part of a pleading.

[TITLE.]

Form No. 685.

The defendant answers to the complaint:

on folios

I. That he denies each and every allegation contained in the paragraphs numbered ....... and and ........ of plaintiff's complaint.

....

3191. Part denial. Where the cause of action is divisible, or where several causes of action are stated, defendant in his answer may deny part or some or one of the causes of action, and leave the residue unanswered.36 But the effect of partial denial will be limited to the precise ground covered.37

27 Parshall v. Tillou, 13 How. Pr. 7; Blaisdell v. Raymond, 6 Abb. Pr. 148; Smith v. Wells, 20 How. Pr. 158.

28 Gassett v. Crocker, 9 Abb. Pr. 39; Blake v. Eldred, 18 How. Pr. 240.

29 Vassault v. Austin, 32 Cal. 597; Humphreys v. McCall, 9 id. 59; Brown v. Scott, 25 id. 195; Shearman v. New York Cent. Mills, 1 Abb. Pr. 187; Thorne v. New York Cent. Mills Co., 10 How. Pr. 19; Lewis v. Acker, 11 id. 163; Edwards v. Lent, 8 id. 28; Fales v. Hicks, 12 id. 153; Slater v. Maxwell, 6 Wall. 268.

30 Richardson v. Wilson, 4 Sandf. 708.

31 Hance v. Remming, 1 Code R. (N. S.) 204.

32 Ord v. Steamer Uncle Sam, 13 Cal. 369.

33 Lawrence v. Derby, 15 Abb. Pr. 346.

34 Forbes v. Waller, 25 N. Y. 430.

35 Chapman v. Palmer, 12 How. Pr. 38.

36 Cal. Code Civ. Pro., § 441; Smith v. Shufelt, 3 Code R. 175; Tracy v. Humphrey, id. 190; Willis v. Taggard, 6 How. Pr. 433; Genesee Mut. Ins. Co. v. Moynihen, 5 id. 322; Longworthy v. Knapp, 4 Abb. Pr. 115; Otis v. Ross, 8 How. Pr. 193. In answering a complaint which contains several causes of action, and such answer contains several defenses, each defense pleaded should refer to the cause of action which it is intended to answer. Oreg. Code, 73; Hindman v. Edgar, 24 Oreg. 581.

37 San Francisco Gas Co. v. San Francisco, 9 Cal. 453; Anable

§ 3192. General denial of one of several causes of action. Form No. 686.

[TITLE.]

The defendant answers to the first cause of action contained in the complaint herein, and denies each and every allegation in the complaint respecting the same.

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The defendant answers to the complaint, and denies each and every allegation contained in the [third and fifth] articles thereof.

§ 3194. Effect and form of. Where the defendant relies on a state of facts single and indivisible, it is not necessary to separately and distinctly state and number each mitigating circumstance.38 If the pleadings are under oath, and the replications in response to a material averment of the answer undertake to deny, by saying " it is not true," etc., the replication is evasive, and does not specifically deny the averment.39 And only such allegations should be denied as defendant intends to controvert.40 A denial can not be made by implication.41 Each proposition should be separately denied.42 Nor should two or more grounds of defense be stated, when one of them would be as effectual in law as all of them.43 Such denials would be bad for duplicity, which must be avoided.44 A specific denial of one or more allegations is held to be an admission of all others well pleaded.45

v. Conklin, 25 N. Y. 470; affirming S. C., 16 Abb. Pr. 286; Fairchild v. Rushmore, 8 Bosw. 689. Partial defenses must be pleaded as such. McDaniel v. Pressler, 3 Wash. St. 636.

38 Kinyon v. Palmer, 20 Iowa, 138.

39 Verzan v. McGregor, 23 Cal. 339.

40 Newell v. Doty, 33 N. Y. 83.

41 West v. American Ex. Bank, 44 Barb. 175.

42 Cal. Code Civ. Pro., § 337; More v. Del Valle, 28 Cal. 170; Fitch v. Bunch, 30 id. 208.

43 Lord v. Tyler, 14 Pick. 164.

44 Hooper v. Jellison, 22 Pick. 250; Cahoon v. Bank of Utica, 7 N. Y. 486.

45 De Ro v. Cordes, 4 Cal. 117; Caulfield v. Saunders, 17 id. 569; Whitlock v. McKechnie, 1 Bosw. 427; Pardee v. Schenck, 11 How. Pr. 500; Archer v. Boudinet, 1 Code R. (N. S.) 372; Corwin v. Corwin, 9 Barb. 219; Reilly v. Cook, 22 How. Pr. 93; 13 Abb. Pr. 255; see Walrod v. Bennett, 6 Barb. 144; Harbeck v. Craft, 4 Duer, 122.

A special

Denials of several allegations are but one defense.16 traverse, as originally devised and used, was simply a mode by which the pleader in the inducement spread his own right or title upon the record, adding to this implied denial of the opposing claim a direct denial under the absque hoc.47 The inducement in such a traverse must on its face give the pleader a good right or title, or the whole plea is bad.48 Each denial of an answer must be regarded as applying to the specific allegation it purports to answer, and not as forming a part of an answer to some other specific and entirely independent allegation.49 A denial in an answer should by its words so describe the allegations of the complaint which the pleader intends to controvert that any person of intelligence can identify them.50

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§ 3194a. Denials form and sufficiency—continued. Where an answer to a complaint raises material issues upon the matters alleged therein, the answer is not demurrable for want of sufficient facts.51 And although an answer may be defective, if it can be gathered therefrom that an issue is tendered by the pleading upon a material matter, it is error to render judgment on the pleadings in favor of the plaintiff.52 The denial of an allegation need not be absolute nor in any particular form.53 Any allegation in an answer which, if found to be true, necessarily shows that the allegation of the complaint as to the same matter is untrue is a good traverse, and sufficient as a denial.54 But it is a rule of Code pleading that denials must be specific, and that it must clearly and unequivocally appear what the pleader intends to deny.55 It is held good pleading to deny wholly the wrong with which one is charged, putting the party alleging it to the proof, relying upon his inability to make any

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49 Racouillat v. Rene, 32 Cal. 450.

50 Mattison v. Smith, 19 Abb. Pr. 288.

51 Bennett v. Tacoma, etc., Water Co., 3 Wash. St. 337; § 3176, ante. 52 Rourk v. Miller, 3 Wash. St. 73.

53 Gee v. Culver, 12 Oreg. 228.

54 Burris v. People's Ditch Co., 104 Cal. 248; and see Churchill v. Baumann, 95 id. 541.

55 Denver, etc., Construction Co. v. Stout, 8 Col. 61; and see Power v. Gum, 6 Mont. 5.

proof, or proof of the whole wrong.56 A stipulation by the parties may take the place of denials in an answer.57

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3194b. Defective denials. An answer filed six months after filing a complaint, which simply denies that the plaintiffs are then the owners and in actual possession of the premises claimed, is a virtual confession of the complaint, and is not a denial.58 Where an answer does not deny any of the facts upon which the plaintiff's claim for a lien is based, but denies indebtedness to the plaintiff, and that the plaintiff had any lien, the denials are to be deemed conclusions of law, and no issues of fact are raised by the pleadings.59 So, a denial in a pleading of "legal notice so as in any way to affect the title derived," etc., does not put in issue the allegation of notice in the pleading answered.60 So, an answer which states that it "does not deny or admit " the allegations of the plaintiff's complaint does not constitute "a general or specific denial," and is, there fore, insufficient under section 185, Washington Code of Procedure.61 So, as a general rule, where an answer does not deny the facts stated in a paragraph of the complaint, but controverts the conclusions drawn by the pleader from the facts stated, the answer does not traverse any material fact." But where an answer is defective in its denials, if a trial is had in all respects, and evidence taken as though it properly raised an issue, without any objection in the court below to the defective denials, the plaintiff can not object upon an appeal taken by him that the answer raised no issue.63 And imperfect and defective denials, if acted upon as sufficient at a trial, are in no sense admissions of the allegations of a pleading which are attempted to be denied.64

62

56 Little Pittsburg, etc., Min. Co. v. Mining Co., 11 Col. 223. 57 Alta Silver Min. Co. v. Mining Co., 78 Cal. 629, in which case an instance is given.

58 Leggatt v. Stewart, 5 Mont. 107.

59 Merrigan v. English, 9 Mont. 113.

60 Seaman v. Hax, 14 Col. 536.

61 Lake v. Steinbach, 5 Wash. St. 659.

62 Id.; and see § 3175, ante.

63 Klopper v. Levy, 98 Cal. 525; and see § 3187, ante. A defective answer may be aided by the proof. Johnson v. Bailey, 17 Col. 59; Or it may be cured by the plaintiff's reply. James v. McPhee, 9 id. 486.

64 Loftus v. Fischer, 106 Cal. 616.

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The defendant answers to the plaintiff's complaint:

That he denies that he contracted or agreed with the said plaintiff in manner or form as alleged in the complaint, or in any manner or form, or at all.

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The defendant answers the complaint, and denies:

That he ever promised [or warranted or covenanted] as alleged in the complaint [or that he ever made the agreement mentioned in the complaint, or any agreement, at any time or place.]

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The defendant answers to the plaintiff's complaint:

I. That he did not make with said plaintiff the said agreement by the said plaintiff set forth and alleged in his said complaint, and denies each and every allegation in said complaint in regard thereto.

§ 3198. Controverting conditions precedent.

[TITLE.]

Form No. 691.

The defendant answers the complaint, and denies:

That the plaintiff did perform the conditions precedent to said [contract] on his part to be performed or any one of them, or at all, or that he made any deposit or tender, or [state what, as in contract required].

3199. Conditions precedent excuse for nonperformance. Objections that conditions have not been performed must be specially set up.65 Where performance is prevented by the act of the plaintiff, excuse for nonperformance should be set out in the answer. 66

65 People v. Jackson, 24 Cal. 632; Happe v. Stout, 2 id. 460; Rodgers v. Cody, 8 id. 324.

66 Garvey v. Fowler, 4 Sandf. 665; Crist v. Armour, 34 Barb. 378.

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