The defendant answers the complaint, and denies: That the deed mentioned therein is his deed, or that the defendant did not execute such deed to plaintiff as alleged, or that the defendant did convey to the plaintiff the possession [or equity of redemption] in said premises as alleged, or at all. § 3201. On information and belief. An allegation in an answer by an administrator that the defendant " avers, on information and belief, that no such deed or deeds were ever executed," is a sufficient denial of the averment in the complaint that defendant's intestate executed and delivered the particular deeds referred to.67 The intent of the statute is fully carried out by excluding parol testimony to contradict a deed; but where parties admit the real facts of the transaction in their pleadings, these admissions are to be taken as modifications of the instrument.68 The defendant answers to the complaint, and denies: That the said promissory note [or deed] was executed or delivered by the plaintiff, on the condition and understanding alleged, but avers that it was delivered by him absolutely and without condition. The defendant answers to the complaint, and denies: That the plaintiff demanded the proceeds of the goods therein mentioned before the commencement of this action. 67 Thompson v. Lynch, 29 Cal. 189; Roussin v. Stewart, 33 id. 208; Jones v. City of Petaluma, 36 id. 230. That defendant may deny on information and belief in the New York practice, see Sackett v. Havens, 7 Abb. Pr. 371, note; Davis v. Potter, 4 How. Pr. 155; Dunham v. Gates, Hoffm. Ch. 185; Macauley v. Bromell, 14 Abb. N. C. 316; 67 How. Pr. 252; Wilson v. Doran, 110 N. Y. 101; but in Therasson v. McSpedon, 2 Hilt. 1, a denial upon information and belief was held not sufficient. See, also, Hackett v. Richards, 3 E. D. Smith, 13; Swinburn v. Stockwell, 58 How. Pr. 312. 68 Lee v. Evans, 8 Cal. 424. § 3204. Contract — date. In an action of contract, the defense that no demand was made before the commencement of the suit can not be taken advantage of, unless pleaded in the answer.69 A denial that the demand was made on a certain day, as alleged, is a denial that the demand was made on the particular day stated in the complaint, when the statement of the demand is not qualified as to the manner of its being made.70 The defendant answers to the complaint, and denies: That the representations alleged to have been made by the defendant to the plaintiff were false; but on the contrary thereof, avers that said representations and each of them were and are true. The defendant answers to the complaint, and denies: That he made the said representations in manner and form as the same are in the said complaint alleged, or otherwise, or at all. § 3207. Denial of fraud. Defendant may deny fraud in a transaction which is actually tainted by it; for what constitutes fraud, particularly fraud in law, is often a matter of much diversity of opinion. But a general denial of fraud in answer to a bill of discovery is not enough; he, therefore, must answer to every material allegation."1 The defendant answers to the plaintiff's complaint, and denies: That he [obtained the said deed from the plaintiff] by fraud and misrepresentation, in manner and form as the said plaintiff hath in his said complaint alleged, or by any fraud or misrepresentation whatever. 69 Rabsuhl v. Lack, 35 Mo. 316. 70 Hoopes v. Meyer, 1 Nev. 433. 71 Pettit v. Chandler, 3 Wend. 618; 1 Paige, 427; see § 3209, post. 3209. When insufficient. Such a general denial of fraud as the above is not enough where facts are alleged in the complaint from which the court may infer fraud. In such case the specific acts and representations alleged in the complaint must be each denied.72 § 3210. Special denial of part performance. [TITLE.] Form No. 698. The defendant answers to the complaint, and denies: I. That he put plaintiff into or consented to plaintiff's taking possession of the said premises, under and in part execution of the said pretended sale and contract of the said premises, as charged in said complaint, or at all. ... of his II. The defendant avers that the said own wrong, and without the license and against the consent of said defendant, entered into said premises, and occupied and improved the same. The defendant, answering the complaint, denies: That the said [naming them] were partners as alleged [or that the said A. B. was a partner with the said [naming them] as assigned]. The defendant, answering the complaint, denies: That he made the representations alleged, or any or either of them. The defendant, answering the complaint, denies that he sold to the plaintiff. the .... 72 Litchfield v. Pelton, 6 Barb. 187; Dykers v. Woodard, 7 How. Pr. 313; Churchill v. Bennett, 8 id. 309. The said defendant answers to the complaint of plaintiff: And denies that he received the said in said complaint mentioned, for the purposes and on the trusts aforesaid, or any of them, or in trust at all, in manner alleged in said complaint, or in any manner. The defendant answers to the complaint of plaintiff: I. That the said plaintiff did not deliver, and the said defendant did not receive, the said [describe what] in the said complaint mentioned, upon the trust and confidence therein alleged. II. The said defendant avers that he received the same as and for his own property, absolutely, and without any trust thereto attached. § 3216. Denial on information and belief. [TITLE.] Form No. 704. The defendant answers to the complaint: That according to his information and belief, he denies generally and specifically each and every allegation in the plaintiff's complaint contained. § 3217. Belief. Belief, as used in the statute, is to be taken in its ordinary sense, and means the actual conclusion of the defendant drawn from information.73 Belief may be founded on the statement of others, not competent witnesses, and not under oath.74 Yet if he has formed a belief from this source, he must state it. He can not be the judge as to whether his information is legal testimony.75 If the defendant is presumed to have knowledge of the matters alleged in the complaint, he must, by a proper statement of facts and circumstances, overcome the presumption of knowledge on his part, which being done, his answer on information and belief would be deemed all the law required.76 73 Humphreys v. McCall, 9 Cal. 59; 70 Am. Dec. 621. 74 Id. 75 Id. 76 Brown v. Scott, 25 Cal. 194; Vassault v. Austin, 32 id. 606. Where the alleged fact is, from its nature, presumptively within § 3218. Damage. A denial upon information and belief that the plaintiff suffered and sustained damages in the amount of twenty-five thousand dollars, and an averment upon information and belief that the plaintiff has not sustained any damage or damages whatsoever to exceed the sum of two thousand five hundred dollars, which sum, and none other, is admitted by defendant as the damages suffered, with an offer to pay the same, the pleadings not being verified, was not considered a model answer for imitation;77 it being the employment of negative averments instead of denials. But in Hill v. Smith, 27 Cal. 476, an answer of this character was upheld, upon the principle that the mere form of a denial is not material, provided it directly traverse the allegation which it is intended to meet. A denial of the full amount claimed, and admission of a certain amount to be due, and a tender of that amount, all properly go to constitute one defense.78 of a § 3219. Judgment. If the complaint aver the recovery judgment against one of several defendants, the court in which it was recovered, and the date and amount of the same, the defendants, in their answer, may deny the same upon information and belief.79 § 3220. Recollection and belief. Where the plaintiff, in his bill, directly charged upon the defendant that he had made and entered into a certain agreement, a simple denial by the the personal knowledge of the defendant, he can not be permitted to answer on information and belief, but must answer in the form positive. Loveland v. Garner, 74 Cal. 298; Gribble v. Columbus Brewing Co., 100 id. 67. This rule does not, however, apply to the denial of the sufficiency of a recorded claim of lien. Hagman v. Williams, 88 Cal. 146; compare Mulcahy v. Buckley, 100 id. 484. Denials in the answer, upon information and belief, are not such denials as will serve as the basis of a motion to dissolve a temporary restraining order on the ground that the equities of a bill are fully denied by the answer. Porter v. Jennings, 89 Cal. 440. When the defendant is a corporation, it can not place its denials upon the ground of want of information and belief, if the matters denied are presumptively within the knowledge of any of its officers, even though the officer verifying the answer was himself without any information or belief upon the subject. Sloane v. Railway Co., 111 Cal. 668. 77 Chamon v. San Francisco, Cal Sup. Ct., July Term, 1869. 78 Spencer v. Tooker, 12 Abb. Pr. 354. 79 Vassault v. Austin, 32 Cal. 597. |