Third. For a third defense:

And by way of counterclaim [or set-off or cross-complaint] to the [first] cause of action set forth in the complaint, the defendant alleges [set forth a cause of action against the plaintiff].

§ 3378. Commencement and conclusion. It is proper that each defense should indicate distinctly, by fit and appropriate words, where it commences and where it concludes.23 But no formal commencement or conclusion is prescribed.24 The title of a cause is not a part of a plea.25

One defense

can

§ 3379. Each defense must be complete. not refer to another in the same answer for support.2 26 But it was held in Rice v. O'Connor, 10 Abb. Pr. 362, that several defenses in one statement is not bad on demurrer, Upon a demurrer to a distinct defense, stated separately in an answer, no resort can be had to other portions of the answer to sustain such defense; for each defense must be complete in itself.27 One separate defense, if defective in any material averment, can not be aided by the averments of another separate defense.28 When the complaint contains more than one cause of action, the answer should indicate to which cause of action each defense is interposed.29 If the substance of the defense clearly shows to which cause of action it is addressed, it is sufficient on demurrer.30 If one of several pleas of a defendant going to the whole cause of action is sustained, it bars recovery by the plain

23 Lippencott v. Goodwin, 8 How. Pr. 242; Benedict v. Seymour, 6 id. 298. An objection to an answer, on the ground that separate defenses are not separately stated, can not be taken by demurrer. The defect can only be reached by a motion to strike out, or by some other appropriate proceeding. Hagely v. Hagely, 68 Cal. 348. 24 Bridge v. Payson, 5 Sandf. 210.

25 Bank of Columbia v. Ott, 2 Cranch C. C. 529.

28 Xenia Branch Bank v. Lee, 2 Bosw. 694; S. C., 7 Abb. Pr. 372; Spencer v. Babcock, 22 Barb. 326.

27 Siter v. Jewett, 33 Cal. 92; Xenia Branch Bank v. Lee, 7 Abb. Pr. 372; Loosey v. Orser, 10 id. 246; 4 Bosw. 391; Jackson v. Van Slyke, 44 Barb. 116, note.

28 Catlin v. Pedrick, 17 Wis. 88. An answer can not be aided by extrinsic facts. Beers v. Dalles City, 16 Oreg. 334. Reference to separate defense in answer. See Yost v. Bank of Santa Ana, 94 Cal. 494; and see § 242, ante.

29 Kneedler v. Sternbergh, 10 How. Pr. 67.

30 Willis v. Taggard, 6 How. Pr. 433.

tiff, notwithstanding some other issues may be found in favor of the plaintiff.31

§ 3380. Joint answer. A joint answer to a bill in chancery, if sworn to by all the parties, is sufficient; a joint and several form is not indispensable.3 Where a joint answer of several defendants denies an allegation in the complaint which the plaintiff must prove to establish his cause of action against some of the defendants, but which he need not prove to entitle him to recover against the others, the answer raises material issue for the defendants as to whom the plaintiff must prove such allegation.33 Where a plea states that the defendants come and defend, etc., it will be construed that all defendants are joined.34

§ 3381. Must be consistent. Several defenses may be set up in an answer;35 but generally, if they are contradictory, it is bad.36 A sworn answer must be consistent, and not deny in one sentence what it admits in another sentence.37 Several defenses, inconsistent with each other, may, under proper circumstances, be set up in a verified answer.3 But where an answer is susceptible of being construed to contain either of two defenses, one of payment and the other of counterclaim, it should be construed as setting up only the defense of payment and requiring no reply.39 The inconsistent defenses which are

38

31 Curtis v. Jones, 1 How. App. Cas. 137. What judgment should be rendered when one of two pleas is found for the plaintiff, and the other for the defendant, see Dorsey v. Chenault, 2 Cranch C. C. 316; Kerr v. Force, 3 id. 8.

32 Davis v. Davidson, 4 McLean, 136.

33 Bank of Cooperstown v. Corlies, 1 Abb. Pr. (N. S.) 412. Denial of joint liability and admission of individual liability. See Gruhn v. Stanley, 92 Cal. 86.

34 Kerr v. Swallow, 33 Ill. 379.

35 Cal. Code Civ. Pro., § 441.

36 Bell v. Brown, 22 Cal. 671; Hopper v. Hopper, 11 Paige Ch. 46. 37 Kuhland v. Sedgwick, 17 Cal. 123; Hensley v. Tartar, 14 id. 508; Seattle Nat. Bank v. Carter, 13 Wash. St. 281; Robinson v. Stewart, 10 N. Y. 189; Storer v. Coe, 2 Bosw. 662; Manice v. New York Dry Dock Co., 3 Edw. Ch. 146; Willet v. Metropolitan Ins. Co., 2 Bosw. 678.

38 Bell v. Brown, 22 Cal. 671; and see Eppinger v. Kendrick, 114 id. 620; but compare Seattle Nat. Bank v. Carter, 13 Wash. St. 281. 39 Burke v. Thorne, 44 Barb. 363. As to inconsistencies in the answer, see Hollenbeck v. Clow, 6 How. Pr. 289; Lansingh v. Parker, 9 id. 288; Stiles v. Comstock, id. 48.

allowed to be pleaded in a verified answer are not such as require in their statement a direct contradiction of any fact elsewhere directly averred. They are those in which the inconsistency arises rather by implication of law, being in the nature of pleas of confession and avoidance, as contradistinguished from denials where the party impliedly or hypothetically admits, for the purpose of that particular defense, a fact which he notwithstanding insists does not in truth exist.40 If no objection be taken to an answer, by a motion to strike out or by demurrer, which sets up inconsistent defenses, defendant may, on the trial, rely on any one of such defenses.41 If a defendant, in his answer, admits a material allegation of the complaint, he can not afterwards contest it.42

40 Bell v. Brown, 22 Cal. 671.

41 Klink v. Cohen, 13 Cal. 623; Uridias v. Morrel, 25 id. 35.

42 Howard v. Throckmorton, 48 Cal. 482; see, also, Spanagel v. Reay, 47 id. 608. Inconsistent defenses. Separate defenses to a cause of action are not inconsistent when they all, taken together, may be true; but when the truth of some of them can not be maintained without falsifying others, they are inconsistent. McDonald v. Am. Mort. Co., 17 Oreg. 626; Snodgrass v. Andross, 19 id. 236. General denial, and that the alleged cause of action is barred by the Statute of Limitations are not legally inconsistent with each other. Lawrence v. Peck, 3 S. Dak. 645; and see McCormick v. Kaye, 41 Mo. App. 263; Barnes v. Scott, 29 Fla. 285. So, in an action upon a lease, a defense that the defendant was merely a tenant from month to month is not inconsistent with a defense that by reason of acts and omissions of the plaintiff, amounting to an eviction, the defendants were compelled to remove from the premises. Kline v. Hanke, 14 Mont. 361. Inconsistent pleas are admissible in an answer under Wyoming practice. Lake Shore, etc., R. R. Co., 3 Wyo. 134. So in South Dakota. Stebbins v. Lardner, 2 S. Dak. 127; see, also, Billings v. Drew, 52 Cal. 565; Bruce v. Burr, 67 N. Y. 240; Pavey v. Pavey, 30 Ohio St. 600; Clarke v. Lyon Co., 7 Nev. 75; State v. Rogers, 79 Mo. 283; Hall v. Clement, 41 N. H. 166; contra, Seattle Nat. Bank v. Carter, 13 Wash. St. 281. The pleas of non est factum and non assumpsit are not so inconsistent as to make them inadmissible. Staab v. Caramillo, 3 N. Mex. 33. An objection that an answer contains inconsistent defenses can not be taken by demurrer. The remedy is by motion to strike out, or to require the party pleading to elect between them. Caldwell v. Ruddy, 2 Idaho, 5; compare Lynch v. Richter, 10 Wash. St. 486. See, as to inconsistent defenses, Olympia v. Stevens, 15 id. 601; Pugh v. Oreg. Imp. Co., 14 id. 331; Corbitt v. Harrington, id. 197. Where a defendant denies the execution or delivery of a note, and in a separate defense alleges that the same note was made with a fraudulent intent, the execution of the note is admitted, since the two statements are utterly inconsistent. Maxwell v. Bolles, 28 Oreg. 1.

§ 3382. Prayer in answer. In an action to recover personal property, or to obtain the value of the property on judgment of dismissal against the plaintiff for failure to appear, the answer must contain some allegation or prayer relative to the change of possession from defendant to plaintiff. A formal prayer is not necessary in an answer, when no counterclaim is set up.**

43

3383. Separate answer. In actions against several defendants, each may answer separately.45 But dilatory defenses must be common to all.46 Against several executors, those served first, or who appear first, may answer for the estate.1

3384. Several defenses. The defendant may set forth by answer as many defenses and counterclaims as he may have. They shall each be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.48 Separate allegations of matters in avoidance are admissible in connection with the general denial.49 Several demands against the plaintiff, which are available to the defendant as a set-off, may be pleaded in one defense, each being separately described.50 It would seem to be otherwise of counterclaims.

43 Gould v. Scannell, 13 Cal. 430.

44 Bendit v. Annesley, 42 Barb. 192.

45 2 Saund. Pl. & Ev. 18, 19.

46 Hurley v. Second Bldg. Assn., 15 Abb. Pr. 206, note.

47 Salters v. Pruyn, 15 Abb. Pr. 224.

48 Cal. Code Civ. Pro., § 441; N. Y. Code, ed. 1877, § 507; Bennett v. Le Roy, 14 How. Pr. 178; S. C., 5 Abb. Pr. 55; Blackie v. Neilson, 6 Duer, 683.

49 Kellogg v. Baker, 15 Abb. Pr. 286; McDonald v. Am. Mort. Co., 17 Oreg. 626; Snodgrass v. Andross, 19 id. 236; Veasey v. Humphreys, 27 id. 515; and see Pavey v. Pavey, 30 Ohio St. 600; Nelson v. Brodhack, 44 Mo. 596; 100 Am. Dec. 328.

50 Ranney v. Smith, 6 How. Pr. 420.

The defendant answers to the complaint, and alleges:

I. That after the said dealings in said complaint named, and before the commencement of this action, to-wit, on the

day of

.....

18.., the said A. B. and C. D. came to a mutual accounting touching the several matters and things in said complaint mentioned.

.....

II. That on the said accounting, there was found due from the said A. B. to the said C. D. dollars, as a final balance upon said mutual dealing and matters between the said A. B. and C. D.

III. And the said C. D. avers that the said stated account is just and true.

Wherefore he claims judgment against the plaintiff for said sum of ... dollars, and interest from said .... 18.., and costs.

day of

§ 3386. Advances. In an action by a commission merchant to recover balance of an account, principally for advances, defendant set up an agreement not to sell the goods consigned below a certain price, and a violation by the plaintiff of such agreement, by which defendant was damaged for a greater