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words, held paramount to substance under of ownership becomes a conclusion of law. that system of pleading, procedure and prac- -Cheda v. Bodkin, 173 Cal. 7, 158 Pac, 1025. tice-so much so, indeed, that that notion 6. Where, in an action to recover the finally became responsible for the develop- balance due on a promissory note, the anment of the more liberal ideas which di swer admits the execution of the note and rectly forced the invention of the more elas that the principal and interest have not been tic legal actions of case and assumpsit and, paid, but denies that the same are due and indeed, the body of equitable remedies which owing, the ultimate fact of nonpayment is now adorn the jurisprudence of all civilized admitted, and the denial is but a conclusion countries.-Johnson v. Dixon Farms Co., 29 of law which should be disregarded.--PaciCal. App. 52, 155 Pac. 134.

fic Coast Mail Order House, 29 Cal. App. 613,

157 Pac. 539. $ 425.

7. Evidence need not be pleaded.—In an 1. Complaint.-Under our simplified sys action to recover a sum of money alleged tem of procedure, where plaintiff's pleadings to have been paid by the plaintiff upon the on the facts begin and end with the com purchase price of a lot upon which there plaint, there is by law afforded him an op was at the time a building in course of conportunity, without pleading, to interpose struction on the ground that the defendant evidence overcoming any affirmative matter violated his agreement to construct and of defense set up in the answer, and he may, complete the building in a workmanlike thus, establish a fraud or an estoppel. manner, it is not necessary that the comLlewellyn Iron Works v. Abbott Kinney Co., plaint set forth all of the evidence showing 172 Cal. 210, 155 Pac. 986.

that the building was not completed in a

workmanlike manner, but it is sufficient to § 426.

call attention to the chief objections to the COMPLAINT, WHAT TO CONTAIN.

work.-Levi v. Sockolov, 32 Cal. App. 298,

162 Pac. 902. 1-3. As to form of complaint.

8. Inconsistency in complaint.-In an ac4-6. Conclusions of law.

tion brought to avoid a deed made by the 7. Evidence need not be pleaded.

former husband of the plaintiff to their 8. Inconsistency in complaint.

minor sons, upon the ground that the deed 9. Inconsistent allegations.

did violence to her rights in the community 10, 11. Pleading items of damages, effect of.

property and that it was conceived and ex1. As to form of complaint.-A pleading ecuted in fraud of her rights, and also to in the form of the common counts is suff avoid a deed on the ground of fraud subcient.-Pike v. Zadig, 171 Cal. 273, 152 Pac. sequently made by her to one of such sons 923.

of her undivided interest in the property as 2. There must be an allegation in the heir at law of the other son, whose death complaint showing the value of the de occurred subsequent to the first deed, there manded property. A complaint in an action is no error in allowing the plaintiff on the to recover the possession of mortgaged per trial to abandon her contention touching sonal property which contains no other her right to the community property and in allegation of value than that contained in a resting her action upon a demand for relief copy of the mortgage attached thereto pur against the deed which had been frauduporting to give the value of some of the lently obtained from her by her son, based articles, is insufficient as an allegation of upon the validity of the first deed.-Turner value at the time of the filing of the com v. Turner, 173 Cal. 782, 161 Pac. 980. plaint.-Keiser v. Levering, 29 Cal. App. 41, 9. Inconsistent allegations.-In an action 154 Pac. 281.

for damages for injuries causing death sus3. Recitals in a contract incorporated in tained while preparing to alight from a a complaint in claim and delivery will not street-car, the plaintiffs have the right to supply the want of averments in the plead allege in one count that the car, after stoping.–Keiser v. Levering, 29 Cal. App. 41, ping, suddenly started, and in a separate 154 Pac. 281.

count that after the car had slowed down As to sufficiency of common counts under and arrived near or at the place where it this section of the Code of Civil Procedure, usually stopped to allow passengers to see post, C. C. P. pt., $ 454, note pars. 1-4. alight, and while the deceased was alighting

4. Conclusions of law. In an action to therefrom, the defendant's agents and serannul or cancel a reclamation district as vants negligently caused the car to be sudsessment, allegations in the complaint that denly and violently jerked and started forthe lands of the plaintiffs were not charged ward.-Froeming v. Stockton Elec. R. R. CO., in the present assessment "with their just 171 Cal. 401, 153 Pac. 712. proportion of the former assessment," nor 10. Pleading items of damages, effect of. the "proper proportion of the cost of said -The fact that several of the items enterreclamation," involved legal conclusions ing into the damage are formally alleged in which have no proper place in the pleading. the complaint does not preclude the plaintiff -Spurrier V. Reclamation District No. 17, from praying for judgment for the total 172 Cal. 157, 155 Pac. 840.

damages suffered, of which such items are a 5. A pleading of the ultimate fact of part.–Tucker v. Cooper, 172 Cal. 663, 158 ownership is sufficient, but where the plain. Pac. 181. tiff sets forth his chain of title, and upon 11. In an action to recover damages it is that chain pleads ownership,' the allegation not necessary that the amount claimed to

have been sustained be alleged in the complaint, if it contains a prayer in a specified amount.Tucker v. Cooper, 172 Cal. 663, 158 Pac. 181.

$ 427.

1. Joinder of causes of action.-While a plaintiff is authorized to unite different causes of action in a single complaint he is not required to do so. The right of joinder is one that may be exercised at his option and a defendant can not complain it the plaintiff brings a separate action as to each cause of action.-Realty Const. & Mtg. Co. v. Superior Court, 165 Cal. 543, 132 Pac. 1048.

2. A cause of action by a foreign corporation upon a rejected contingent claim based upon a covenant of warranty against the estate of the deceased warrantor can not be united with a cause of action against the devisee of the land affected by the warranty to recover to the extent devised. This would be a misjoinder of parties defendant because of the absence of unity of interest of the parties.-Tropico Land & Imp. Co. v. Lambourn, 170 Cal. 33, 148 Pac. 206.

3. An action to recover damages sustained in consequence of personal injuries to the wife due to expenditures made for the services of nurses, medical treatment and increased household expenses, can not be joined with an action to recover damages for her personal injuries, as the right to recover such consequential damages constitutes a cause of action in favor of the husband alone, while the wife is a necessary party plaintiff to an action for damages for her injuries, and where the two causes of action are joined in the one complaint in an action by the husband and wife, a special demurrer thereto on the grounds of misjoinder of causes of action and misjoinder of parties plaintiff should be sustained, but where such misjoinder has not prevented a full, fair and complete trial of the issues presented, the error is technical and falls within the provisions of section 442 of article VI of the state constitution.-Meier y. Wagner, 27 Cal. App. 579, 150 Pac. 797.

4. -Election.-In case of an improper joinder of two causes of action in one count, which could have been stated in separate counts and be submitted to the jury, the plaintiff can not be required to elect at the trial as to which he will rely upon.-Balaklala Consol. Copper Co. v. Whitsett, 221 Fed. 421.

a fraud committed more than three years before the commencement of the action, a demurrer based upon the statute of limitations will lie.-Earhart v. Churchill, 169 Cal. 728, 147 Pac. 942.

2. Where it appears on the face of a complaint that the action, brought by a nonresident against a foreign corporation, has not arisen from the business done by the corporation in the state, the objection to the complaint may be taken advantage of by demurrer.-Fry v. Denver & R. G. R. Co., 226 Fed. 893.

3. A want of legal capacity to sue.-An objection to the legal capacity of the plaintiffs to maintain the action or sue upon the obligation pleaded can not be raised by a general demurrer.-Moore v. Laufr. 30 Cal. App. 452, 158 Pac. 557.

4. For misjoinder of causes of action.—A complaint in an action by a fisherman against certain deputy fish and game wardens for damages, which charges the defenddens for da ants with "unlawfully" arresting the plaintiff and compelling him to abandon his launch upon which he lived and slept, without first giving him an opportunity to secure its safety from the dangers of the elements or the sea, as a consequence of which the launch was destroyed, states a cause of action for negligence, and not for false imprisonment, and is not subject to demurrer for misjoinder of causes of action.-Argyropolus v. Barnes, 28 Cal. App. 254, 151 Pac. 1156.

3. For misjoinder of parties.-There is no misjoinder of parties defendant where the employee of a gas company sues a railroad company and the owner of a team, alleging that the railroad company negligently operated a welding machine and thereby frightened the horses so that one of them fell into the trench where the plaintiff was working.–Fallon v. United Railroads, 28 Cal. App. 60, 151 Pac. 290.

6. Laches may be taken advantage of by demurrer,—The defense of laches can be taken advantage of by demurrer; such a defense is, in substance, that the complaint does not show equity, or fails to state facts sufficient to constitute a cause of action.Superior California Fruit Land Co. v. Grossman, 32 Cal. App. 357, 162 Pac. 1046.

7. Variance between allegation and exhibit.-A variance between the direct allegations of a complaint and a copy of an instrument set forth therein, or an exhibit attached thereto, can be successfully attacked only by special demurrer and can not be taken advantage of by general demurrer.Linz v. McIver & Becker, 29 Cal. App. 470, 156 Pac. 1000.

§ 430.

WHEN DEFENDANT MAY DEMUR. 1, 2. As to generally.

3. A want of legal capacity to sue. 4. For misjoinder of causes of action, 5. For misjoinder of parties. 6. Laches may be taken advantage of by

demurrer. 7. Variance between allegation and ex

hibit. 1. As to generally-When a complaint fails to state the time of the discovery of

§ 431.

Demurrer to specify grounds-Construction.—The code does not contemplate dividing up grounds of demurrer piecemeal, but the several grounds relied upon must all be stated in the same pleading.–Fry v. Denver & R. G. R. Co., 226 Fed. 893.

§ 432.

1. Amendment-Construction. This provision is but a direction to compel the joining of issues within a reasonable time so as to expedite the trial of actions. It is still discretionary with the court whether it will allow defendant any time to answer. To say that because a complaint is amended the defendant has the absolute right to time and to the postponement of the case to plead to the amendment, states the rule too broadly.- Lincoln County Bank v. Fetterman, 170 Cal. 357, 149 Pac. 811.

2. Pleadings may be amended to conform to the proofs during and even after the trial.-Stohlman v. Martin, 28 Cal. App. 338, 152 Pac. 319.

3. Denial on information and belief. The allegation of the corporate capacity and existence of the plaintiff in an action can not be successfully denied upon information and belief because, perchance, the plaintiff had failed to pay its license tax and might therefore, unknown to the defendant, have lost its corporate character by operation of law. The statutory acts required to be performed in conjunction with the failure to pay the license tax (proclamation of forfeiture), before a forfeiture of the corporate franchise will occur, must become matters of public record, and when the existence of an alleged fact may be ascertained from an inspection of the public record, its existence can not be put in issue by a denial based solely upon information and belief.-William Wilson Co. v. Trainor, 27 Cal. App. 43, 148 Pac. 954.

4. In an action by the mortgagee against the consignee of the mortgagor to recover the proceeds of the crop, a denial upon information and belief of the execution of the mortgage is sufficient to raise an issue thereon, notwithstanding the defendant had constructive notice of its recordation.Crosby v. Fresno Fruit Growers' Co., 30 Cal. App. 308, 158 Pac. 1070.

§ 433.

1. Objections not appearing must be raised by answer.-It is only where the complaint affirmatively discloses that the right of action is necessarily barred by the statute of limitations that a demurrer on the ground of the bar of the statute may be taken.-Pike V. Zadig. 171 Cal. 273. 152 Pac. 923.

$ 434.

1. Waiver or cure of defects. ---Where a cause of action for wrongful death is defectively stated and subject to the objection that it is uncertain and ambiguous as to the particular negligence upon which the plaintiff relies, such defect is cured by the introduction in evidence, without specific objection of those facts which, if alleged, would have made the pleading sufficient to withstand the attack of a general demurrer.--Boyle v. Coast Imp. Co., 27 Cal. App. 714, 151 Pac. 25.

2. The objection that a pleading is ambiguous and uncertain can not be availed of on appeal in the absence of a special de murrer.—Merrill v. Kohlberg, 29 Cal. App. 382, 155 Pac. 824.

§ 437.

ANSWER. 1, 2. As to what must contain. 3, 4. Denial on information and belief.

1. As to what must contain.—Where a complaint is directed against two persons, and the liability of one involves some facts which are not material to the liability of

other, upon the cause of action declared upon, and they answer separately, neither is required to answer those allegations which relate to the sole liability of the other.Robson v. Superior Court, 171 Cal. 588, 154 Pac. 8.

2. In an action on a promissory note the assignment of the instrument to the plaintiff can not be questioned by the defendant under a general denial of assignment with out any allegation of matter by way of special defense.-Rucker v. Carpenter, 29 Cal. App. 678, 157 Pac. 524.

§ 438.

1. Setting up counterclaims. — The law abhors a multiplicity of actions, and the evident intent of the legislature in passing the code provisions relating to counterclaims was that all matters that may be the subject of litigation between the parties within the limitations prescribed shall be settled in one action.—Calara Valley Realty Co. v. Smith, 29 Cal. App. 589, 156 Pac. 369.

2. In an action for the recovery of a balance due on an open book account the failure of the defendant to expressly admit or deny the allegations of the complaint does not deprive him of the right to set up a counterclaim growing out of contract as an offset, notwithstanding that it exceeds the amount of plaintiff's demand and that no affirmative judgment is asked for by defendant.-Calara Valley Realty Co. v. Smith, 29 Cal. App. 589, 156 Pac. 369.

3. It is the better course, in an action on an open book account, for a defendant who has a counterclaim to expressly admit the indebtedness pleaded by the plaintiff and set up his counterclaim as a special defense by way of avoidance.-Calara Valley Realty Co. v. Smith, 29 Cal. App. 589, 156 Pac. 369.

4. The pleading of a counterclaim without directly denying the allegations of the complaint is suficient to tender an issue upon the question whether the plaintiff is entitled to a judgment for the full amount of the claim or any part thereof upon which he has sued, and the right to support such special defense is not affected by the fact that the alleged counterclaim exceeds that of the debt sued for by the plaintiff and that the defendant asks for no affirmative relief. -Calara Valley Realty Co. v. Smith, 29 Cal. App. 589, 156 Pac. 369.

$ 440.

American Nat. Bank v. Donnellan, 170 Cal, 9, SETTING OFF CLAIMS.

148 Pac. 188.

3. It is permissible to separately plead 1, 2. Construction, what constitutes a set-off. inconsistent defenses.-Dibble v. Reliance 3. Set-off between executor and legatee.

Life Ins. Co., 170 Cal. 199, 149 Pac. 171. 4–7. Setting off mutual demands.

4. Counterclaim in amended answer.1. Construction-What constitutes a net

The superior court has legal authority to off.-A proceeding to obtain an order di

deny a defendant the privilege to file an anrecting the payment of an allowed claim swer after he has interposed a demurrer is an "action" within section 438 and this

and it has been overruled.—Leavell v. Susection.—Estate of Bell, 168 Cal. 253, 141 perior Court, 27 Cal. App. 191, 149 Pac. 372. Pac. 1179.

5. A valid and subsisting counterclaim 2. This section “is not intended to and

may be presented by amended answer.-Caldoes not affect the negotiability of commer

ara Valley Realty Co. v. Smith, 29 Cal. App. cial paper, or the rights of bona fide trans

589, 156 Pac. 369. ferees of such paper."-Kunz v. California Tuna Co., 169 Cal. 348, 146 Pac. 883.

$ 446. 3. Set-off between executor and legatee.

VERIFICATION. -A judgment in favor of a testator's estate

1-5. As to generally. against a legatee should be set off on dis

6-8. Unverified answer to verified complaint, tribution against the distributive share. An

effect. assignee of the legatee, under an assign

9. Waiver of signature. ment made after the judgment was recoyered, took subject to the right of set-off 1. As to generally.The clause providing existing in favor of the estate.-Estate of for verification by an officer, when a corpoGamble, 166 Cal. 253, 135 Pac. 970.

ration is a party is not exclusive, but per4. Setting off mutual demands.—The fact missive only, and does not prevent an that one of the cross-demands has been re- attorney or other person from making the duced to judgment, while the other has not, verification in a proper case. The clause is is no obstacle to the allowance of a set-off. qualified by the preceding part of the sec-Machado y. Borges, 170 Cal. 501, 150 Pac. tion and is not a limitation that only officers 351.

of a corporation can verify the pleadings.5. The plaintiff, in an action to recover Bittleston Law & Collection Agency v. Howupon certain promissory notes made and de- ard, 172 Cal. 357, 156 Pac. 515. livered to him by the defendant, is entitled 2. A verification of an amended complaint to have a judgment obtained against him made by the assignor of the plaintiff, which by the defendant set off, against his claim declares that the affant “is the assignor of on the notes, notwithstanding the judgment plaintiff in the above-entitled action, and for has been assigned by the defendant to his that reason is better informed as to the attorney to secure him for attorney fees and facts thereof than the said plaintiff; that he costs incurred in the action in which the has read the foregoing complaint and knows judgment was rendered, and that such at the contents thereof, and that the same is torney took the assignment without knowl- true of his own knowledge, except as to edge of the plaintiff's claim.-Machado v. matters which are therein stated on inforBorges, 170 Cal. 501, 150 Pac. 351.

mation and belief, and as to those matters 6. The plaintiff is not precluded from as that he believes it to be true," fully meets serting his right of set-off by his failure to the requirements of section 446 of the Code set up his notes by way of counterclaim in of Civil Procedure, and sufficiently shows the suit brought against him by the maker that the facts are within the knowledge of of the notes, since the mutual demands did the affiant, and sufficiently states the reasnot arise out of the same transaction.-Ma- ons why the verification was not made by chado v. Borges, 170 Cal. 501, 150 Pac. 351. one of the parties.-Bittleston Law & Col

7. A court of equity will compel a set-off lection Agency v. Howard, 172 Cal. 357, 156 of mutual demands, where such relief is Pac. 515. necessary to enable the party claiming the 3. Where a pleading contains no averrelief to collect his claim.-Machado V. ments on information and belief, the added Borges, 170 Cal. 501, 150 Pac. 351.

words in the affidavit of verification “except

as to matters which are therein stated on § 441.

information or belief," do not qualify the ANSWER WITH SEVERAL GROUNDS OF positive character of the verification as to DEFENSE.

the truth of the allegations of the com

plaint.-Bittleston Law & Collection Agency 1. As to pleading in separate counts.

v. Howard, 172 Cal. 357, 156 Pac. 515. 2, 3. As to inconsistent defenses,

4. It is not vital to such a verification 4,5. Counterclaim in amended answer.

that the affidavit specify in formal charac1. As to pleading in separate counts. terization the facts constituting the reasons The defendant in ejectment has the right to why it is not made by the party, where plead his defenses in separate counts. such reasons can be gathered from all the Schader v. White, 173 Cal. 441, 160 Pac. 557. facts stated in the affidavit, when read in

2. As to inconsistent defenses.The de- the light of the pleading:-Bittleston Law fendant may set forth as many defenses as & Collection Agency v. Howard, 172 Cal. he has, even though they be inconsistent.- 357, 156 Pac. 515.

5. Where an unverified answer is filed to section 448 of the Code of Civil Procedure. such a verified complaint, a motion for judg -Quartz Glass & Mfg. Co. v. Joyce, 27 Cal. ment on the pleadings without a prelimin. App. 523, 150 Pac. 648. ary motion to strike the answer from the files, is proper.-Bittleston Law & Collec $ 452. tion Agency v. Howard, 172 Cal. 357, 156 Pac.


PLEADINGS. 6. Unverified answer to verified complaint, effect.-Where a verified complaint is

1-4. Liberally construed to promote justice. served and the answer is unverified the

5. Presumptions as to references in. plaintiff is entitled to have the answer

6. Presumptions against pleader. stricken out on motion and a judgment by 1. Liberally construed to promote jusdefault entered, or in the absence of an or tice.Pleas in abatement are not favored der striking out the answer, to a judgment and should be judged with strictness.for want of an answer.-Johnson v. Dixon Scheeline v. Moshier, 172 Cal. 565, 158 Pac. Farms Co., 29 Cal. App. 52, 155 Pac. 134. 222.

7. It is not a rule of pleading that an un 2. Pleadings are no longer to be converified answer to a verified complaint ad strued against the pleader, but are to be mits all of the allegations of the complaint liberally construed with a view to promotto be true in the absence of a reasonable ing justice. Burian v. Los Angeles Cafe Co., objection to the failure of the defendant to 173 Cal. 625, 161 Pac. 4. verify his answer; the remedy of the plain 3. Where under the old common-law systif in such a contingency is to move the tem a pleading would crumble under the trial court to strike out the answer or for weight of a demurrer, under the advanced judgment upon the pleadings for want of system which concerns itself more with suban answer, and if the case goes to trial and stance, the same pleading might reasonably is heard and determined upon the issues be held sufficient to state a cause of action. purporting to have been raised by the plead. From an averment that the plaintiff sold the ings of the parties without a previous ob hay to the defendant the fact of delivery jection upon the part of the plaintiff to lack is implied, and while not strictly a proper of verification of the defendant's answer, manner of stating a case for goods sold and the defect will be deemed to have been delivered is nevertheless suficient.-Johnson waived.-Hill v. Merle & Co., 29 Cal. App. v. Dixon Farms Co., 29 Cal. App. 52, 155 Pac. 473, 156 Pac. 981.

134. 8. An unverified answer to a verified 4. A pleading styled a “bill to redeem" complaint may be disregarded and treated may in fact be a bill to quiet the complainas sham upon a motion for judgment on the ants' alleged title to the land in question.pleadings.—Consolidated Music Co. v. Morri Power & Irr. Co. of Clear Lake v. Capay son, 30 Cal. App. 303, 158 Pac. 342.

Ditch Co., 226 Fed. 634. 9. Waiver of signature.-An objection 5. Presumptions as to references in.that the complaint was not signed by the Paragraphs of a complaint which co plaintiff or his attorney is waived where averments referring to other parts of the the objection is not made in the trial court. pleading are presumed to refer to prior por-Hellings v. Wright, 29 Cal. App. 649, 156 tions only.-Richmond Construction Co Pac. 365.

Doe, 29 Cal. App. 427, 155 Pac. 1008.

6. Presumptions against pleader.-Ifa $ 448.

complaint makes no allegation as to when 1. Affidavit required to be filed, when. the plaintiff became of age, it will be preWhere the due execution and delivery of a sumed that each one of them was sui juris deed are denied by the answer and cross for a sufficient length of time to allow the complaint, and the plaintiff in his answer to statute of limitations to run prior to the the cross-complaint sets out the deed in filing of the complaint.— Earhart v. Churchhaec verba, the defendant does not admit ill Co., 169 Cal. 728, 147 Pac. 942. the execution and delivery thereof where he fails to file the affidavit of this section, as $ 454. it would have been a vain and useless exac

STATING ACCOUNT IN PLEADING. tion to require a further denial of the ef

1-4. Common counts. fect of the writing.-Cox v. Schnerr, 172

'5. Bill of particulars. Cal. 371, 156 Pac. 509.

6. -As evidence. 2. In an action by a corporation to re

7. Not vulnerable to special demurrer. cover upon a promissory note, the genuineness and due execution of a written agree 1. Common counts. A complaint in an ment set up as a defense to the action, made action for the recovery of money, which albetween the plaintiff and the defendant at leges that the defendants became indebted the time of the making of the note, provid to the plaintiff for money had and received ing that payment thereof should be made by them for the use and benefit of the plainout of dividends to be declared upon certain tiff in two given sums, is a sufficient pleadshares of the capital stock for the purchase ing under the old form known as a "comprice of which the note was given, is deemed mon count."-Pike v. Zadig, 171 Cal. 273, admitted, where no affidavit denying the 152 Pac. 923. genuineness and due execution of such in- 2. If the question were new, there might strument is filed or served as provided by be ground for saying that the common

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