§ 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.

a

1. Waiver or cure of defects.-Where 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 demurrer.-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.

a

1. As to what must contain.-Where complaint is directed against two persons, and the liability of one involves some facts which are not material to the liability of the 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 without any allegation of matter by way of special defense.-Rucker v. Carpenter, 29 Cal. App. 678, 157 Pac. 524.

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.

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 sufficient 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.

SETTING OFF CLAIMS.

1, 2. Construction, what constitutes a set-off. 3. Set-off between executor and legatee. 4-7. Setting off mutual demands.

1. Construction-What constitutes a setoff. A proceeding to obtain an order directing the payment of an allowed claim is an "action" within section 438 and this section.-Estate of Bell, 168 Cal. 253, 141 Pac. 1179.

2. This section "is not intended to and does not affect the negotiability of commercial paper, or the rights of bona fide transferees of such paper."-Kunz v. California Tuna Co., 169 Cal. 348, 146 Pac. 883. 3. Set-off between executor and legatee. -A judgment in favor of a testator's estate against a legatee should be set off on distribution against the distributive share. assignee of the legatee, under an assignment made after the judgment was recovered, took subject to the right of set-off existing in favor of the estate.-Estate of Gamble, 166 Cal. 253, 135 Pac. 970.

An

4. Setting off mutual demands.-The fact that one of the cross-demands has been reduced to judgment, while the other has not, is no obstacle to the allowance of a set-off. -Machado v. Borges, 170 Cal. 501, 150 Pac.

351.

5. The plaintiff, in an action to recover upon certain promissory notes made and delivered to him by the defendant, is entitled to have a judgment obtained against him by the defendant set off, against his claim on the notes, notwithstanding the judgment has been assigned by the defendant to his attorney to secure him for attorney fees and costs incurred in the action in which the judgment was rendered, and that such attorney took the assignment without knowledge of the plaintiff's claim.-Machado v. Borges, 170 Cal. 501, 150 Pac. 351.

6. The plaintiff is not precluded from asserting his right of set-off by his failure to set up his notes by way of counterclaim in the suit brought against him by the maker of the notes, since the mutual demands did not arise out of the same transaction.-Machado v. Borges, 170 Cal. 501, 150 Pac. 351.

7. A court of equity will compel a set-off of mutual demands, where such relief is necessary to enable the party claiming the relief to collect his claim.-Machado V. Borges, 170 Cal. 501, 150 Pac. 351.

§ 441.

ANSWER WITH SEVERAL GROUNDS OF DEFENSE.

1. As to pleading in separate counts. 2, 3. As to inconsistent defenses.

4, 5. Counterclaim in amended answer.

1. As to pleading in separate counts.— The defendant in ejectment has the right to plead his defenses in separate counts.Schader v. White, 173 Cal. 441, 160 Pac. 557. 2. As to inconsistent defenses.-The defendant may set forth as many defenses as he has, even though they be inconsistent.—

American Nat. Bank v. Donnellan, 170 Cal. 9, 148 Pac. 188.

3. It is permissible to separately plead inconsistent defenses.-Dibble v. Reliance Life Ins. Co., 170 Cal. 199, 149 Pac. 171.

4. Counterclaim in amended answer.The superior court has legal authority to deny a defendant the privilege to file an answer after he has interposed a demurrer and it has been overruled.-Leavell v. Superior Court, 27 Cal. App. 191, 149 Pac. 372. 5. A valid and subsisting counterclaim may be presented by amended answer.-Calara Valley Realty Co. v. Smith, 29 Cal. App. 589, 156 Pac. 369.

§ 446.

VERIFICATION.

1-5. As to generally.

6-8. Unverified answer to verified complaint, effect.

9. Waiver of signature.

1. As to generally.-The clause providing for verification by an officer, when a corporation is a party is not exclusive, but permissive only, and does not prevent an attorney or other person from making the verification in a proper case. The clause is qualified by the preceding part of the section and is not a limitation that only officers of a corporation can verify the pleadings.Bittleston Law & Collection Agency v. Howard, 172 Cal. 357, 156 Pac. 515.

2. A verification of an amended complaint made by the assignor of the plaintiff, which declares that the affiant "is the assignor of plaintiff in the above-entitled action, and for that reason is better informed as to the facts thereof than the said plaintiff; that he has read the foregoing complaint and knows the contents thereof, and that the same is true of his own knowledge, except as to matters which are therein stated on information and belief, and as to those matters that he believes it to be true," fully meets the requirements of section 446 of the Code of Civil Procedure, and sufficiently shows that the facts are within the knowledge of the affiant, and sufficiently states the reasons why the verification was not made by one of the parties.-Bittleston Law & Collection Agency v. Howard, 172 Cal. 357, 156 Pac. 515.

3. Where a pleading contains no averments on information and belief, the added words in the affidavit of verification "except as to matters which are therein stated on information or belief," do not qualify the positive character of the verification as to the truth of the allegations of the complaint.-Bittleston Law & Collection Agency v. Howard, 172 Cal. 357, 156 Pac. 515.

4. It is not vital to such a verification that the affidavit specify in formal characterization the facts constituting the reasons why it is not made by the party, where such reasons can be gathered from all the facts stated in the affidavit, when read in the light of the pleading.-Bittleston Law & Collection Agency v. Howard, 172 Cal. 357, 156 Pac. 515.

5. Where an unverified answer is filed to such a verified complaint, a motion for judgment on the pleadings without a preliminary motion to strike the answer from the files, is proper.-Bittleston Law & Collection Agency v. Howard, 172 Cal. 357, 156 Pac. 515.

6. Unverified answer to verified complaint, effect.-Where a verified complaint is served and the answer is unverified the plaintiff is entitled to have the answer stricken out on motion and a judgment by default entered, or in the absence of an order striking out the answer, to a judgment for want of an answer.-Johnson v. Dixon Farms Co., 29 Cal. App. 52, 155 Pac. 134.

7. It is not a rule of pleading that an unverified answer to a verified complaint admits all of the allegations of the complaint to be true in the absence of a reasonable objection to the failure of the defendant to verify his answer; the remedy of the plaintiff in such a contingency is to move the trial court to strike out the answer or for judgment upon the pleadings for want of an answer, and if the case goes to trial and is heard and determined upon the issues purporting to have been raised by the pleadings of the parties without a previous objection upon the part of the plaintiff to lack of verification of the defendant's answer, the defect will be deemed to have been waived.-Hill v. Merle & Co., 29 Cal. App. 473, 156 Pac. 981.

8. An unverified answer to a verified complaint may be disregarded and treated as sham upon a motion for judgment on the pleadings.-Consolidated Music Co. v. Morrison, 30 Cal. App. 303, 158 Pac. 342.

9. Waiver of signature.-An objection that the complaint was not signed by the plaintiff or his attorney is waived where the objection is not made in the trial court. -Hellings v. Wright, 29 Cal. App. 649, 156 Pac. 365.

§ 448.

1. Affidavit required to be filed, when.— Where the due execution and delivery of a deed are denied by the answer and crosscomplaint, and the plaintiff in his answer to the cross-complaint sets out the deed in haec verba, the defendant does not admit the execution and delivery thereof where he fails to file the affidavit of this section, as it would have been a vain and useless exaction to require a further denial of the effect of the writing.-Cox v. Schnerr, 172 Cal. 371, 156 Pac. 509.

2. In an action by a corporation to recover upon a promissory note, the genuineness and due execution of a written agreement set up as a defense to the action, made between the plaintiff and the defendant at the time of the making of the note, providing that payment thereof should be made out of dividends to be declared upon certain shares of the capital stock for the purchase price of which the note was given, is deemed admitted, where no affidavit denying the genuineness and due execution of such instrument is filed or served as provided by

section 448 of the Code of Civil Procedure. -Quartz Glass & Mfg. Co. v. Joyce, 27 Cal. App. 523, 150 Pac. 648.

§ 452.

RULES FOR CONSTRUCTION OF

PLEADINGS.

1-4. Liberally construed to promote justice. 5. Presumptions as to references in. 6. Presumptions against pleader.

1.

Liberally construed to promote justice. Pleas in abatement are not favored and should be judged with strictness.Scheeline v. Moshier, 172 Cal. 565, 158 Pac. 222.

2. Pleadings are no longer to be construed against the pleader, but are to be liberally construed with a view to promoting justice. Burian v. Los Angeles Cafe Co., 173 Cal. 625, 161 Pac. 4.

3. Where under the old common-law system a pleading would crumble under the weight of a demurrer, under the advanced system which concerns itself more with substance, the same pleading might reasonably be held sufficient to state a cause of action. From an averment that the plaintiff sold the hay to the defendant the fact of delivery is implied, and while not strictly a proper manner of stating a case for goods sold and delivered is nevertheless sufficient.-Johnson v. Dixon Farms Co., 29 Cal. App. 52, 155 Pac. 134.

counts do not comply with the provisions of our Code of Civil Procedure, section 426, that the complaint must contain "a statement of the facts constituting the cause of action, in ordinary and concise language"; but the practice of pleading in this form has been too long established in this state to be now open to question.-Pike v. Zadig, 171 Cal. 273, 276, 152 Pac. 923. See Freeborn v. Glazer, 10 Cal. 337; Wilkins v. Stidger, 22 Cal. 232, 83 Am. Dec. 64; Abadie v. Carrillo, 32 Cal. 172; Merritt v. Glidden, 39 Cal. 564, 2 Am. Rep. 479 (but not good against a special demurrer for unintelligibility or uncertainty); Pavisichi v. Bean, 48 Cal. 364; Magee v. Kast, 49 Cal. 145; De la Guerra v. Newhall, 55 Cal. 23; Quimby v. Lyon, 63 Cal. 394, 395; Castagnino v. Balletta, 3 Cal. Unrep. 107, 21 Pac. 1097, affirmed 82 Cal. 250, 257, 23 Pac. 127; Farwell v. Murray, 104 Cal. 464, 38 Pac. 199; Pleasant v. Samuels, 114 Cal. 34, 45 Pac. 998; Shade v. Sessions Mill & L. Co., 115 Cal. 357, 367, 47 Pac. 135 (not good as against a special demurrer for ambiguity or uncertainty); Minor v. Baldridge, 123 Cal. 187, 190, 55 Pac. 783 (good in absence of special demurrer); Gregory v. Clabrough, 129 Cal. 475, 62 Pac. 72; Brown v. Crown Gold Milling Co., 150 Cal. 376, 89 Pac. 86; Miller v. Abrahamson, 9 Cal. App. 397, 99 Pac. 535.

3. "That the common counts may be resorted to in actions on contracts within certain defined limits, has been too long and too well settled in this state to be subject to further debate or controversy it is only necessary to refer to the cases which adjudge this to be the law-a course of decision which commenced in this court at an early day in its history, following the rulings of the courts of New York on a statute similar to our own, and which has continued to the present time."-Castagnino v. Balletta, 82 Cal. 250, 267, 23 Pac. 127, affirming 3 Cal. Unrep. 107, 21 Pac. 1097, and citing De Boom v. Priestly, 1 Cal. 206; Reynolds v. Jordan, 6 Cal. 108, and O'Connor v. Dingley, 26 Cal. 20.

4. and recognized This rule has been acted on in most states where the code practice has been adopted.-Pleasant v. Samuels, 114 Cal. 34, 37, 45 Pac. 998. See Ball v. Fulton County, 31 Ark. 379; Solomon v. Vinson, 31 Minn. 206 (a well-established rule of pleading in code states); Pioneer Fuel Co. v. Hagar, 57 Minn. 77, 47 Am. St. Rep. 575, 58 N. W. 828 (but common counts must be such as would have been good at common law); Allen v. Patterson, 7 N. Y. 476, 57 Am. Dec. 542; Cudlipp v. Whipple, 4 Duer (N. Y.) 610; Busta v. Wardall, 3 S. D. 141, 52 N. W. 418; Ankeny v. Clark, 1 Wash. 549, 20 Pac. 583; Grannis v. Hooker, 29 Wis. 65.

5. Bill of particulars.—It is no objection to a complaint that the times when the indebtedness, or the various items thereof, accrued are not set forth, as further information may be obtained by a demand for a bill of particulars.-Pike v. Zadig, 171 Cal. 273, 152 Pac. 923.

6. -As evidence.-In an action to recover an alleged balance due for lumber sold and

delivered, wherein the controversy related to the quantity of lumber delivered and not to the prices charged with respect to the various items, there is no error in permitting a bill of particulars compiled from certain books produced in court containing the original charges, to be used in connection with the testimony of the manager of the lumber company, where the admission in evidence and use of such bill were distinctly stated by the court to be for purposes of convenience and the saving of time, and it is shown by such witness that the books were kept under his direction and that they were correct.-Montgomery & Mullen Lumber Co. v. Ocean Park Scenic R. Co., 32 Cal. App. 32, 161 Pac. 1171.

7. Not vulnerable to special demurrer.— "There have been intimations in this court that such a pleading, although not obnoxious to a general demurrer, might fall before a special demurrer on the ground of uncertainty. We think, however, that there is no force in this suggestion. If there be any objection to the common count, it is that the pleading states conclusions of law instead of setting forth the facts upon which the plaintiff relies. The real ground of objection, therefore, is that the complaint does not state facts sufficient to constitute a cause of action. But, as we have seen, this objection is not maintainable."-Pike v. Zadig, 171 Cal. 273, 276, 152 Pac. 923.

§ 458.

1. Pleading statute of limitations.-An allegation in an amended complaint, in an action for money due on an open account, that the indebtedness arose "within four years last past" sufficiently negatives the statute of limitations.-Pike v. Zadig, 171 Cal. 273, 152 Pac. 923.

2. An allegation in a complaint that the indebtedness accrued "within four years last past," instead of within four years prior to the commencement of the action, does not render it demurrable on the ground of the bar of the statute of limitations.-Pike v. Zadig, 171 Cal. 273, 152 Pac. 923.

3. It is not necessary that a demurrer, raising the statute of limitations, should specify any particular section of the statute. -Spreckels v. Spreckels, 172 Cal. 775, 158 Pac. 537.

to

words, it is proper to enter an order sustaining a special demurrer addressed such omission.-Des Granges v. Crall, 27 Cal. App. 313, 149 Pac. 777.

3. A complaint in such an action based upon written notices sent to certain corporations, instructing them not to pay any money to the plaintiff nor to transfer any stock to him, fails to state a cause of action, notwithstanding the pleading of an innuendo indicating a hidden meaning to be drawn from such notices.-Des Granges v. Crall, 27 Cal. App. 313, 149 Pac. 777.

4. An innuendo must not introduce new matter or enlarge the natural meaning of words, and if the meaning of the language is plain no innuendo is needed.-Des Granges v. Crall, 27 Cal. App. 313, 149 Pac. 777.

5. A complaint in an action for libel based upon the publication of an article in a newspaper having reference to a divorce action, which alleges that the plaintiff in the divorce action in his complaint accused his wife of having two "affinities" of whom the plaintiff in the action for libel is one, states a cause of action.-Riley v. Evening Post Publishing Co., 30 Cal. App. 294, 158 Pac. 225.

6. A complaint in an action for libel, brought by the lessee and manager of a theater against the publisher of a newspaper for the publication of an article concerning the relations of a certain person with the chorus girls employed at the theater, which erroneously states that such person was the manager of the theater, but which makes no reference to the plaintiff, fails to state a cause of action for general damages, for the article is not libelous per se, and in the absence of an averment of special damages, no recovery can be had thereon.-Pollock v. Evening Herald Pub. Co., 28 Cal. App. 786, 154 Pac. 30.

7. An allegation in the complaint that the defendants are the owners of the newspaper in which the article was published, and that on the day specified they published therein concerning the plaintiff the article set forth in the complaint, is a sufficient averment of publication by the defendants. -Bonestell v. Shaw, 28 Cal. App. 226, 151 Pac. 1149.

8. A complaint in an action for damages for the publication of an alleged libel concerning an attorney at law is not subject to general demurrer, where the language of the article upon its face accuses the plaintiff of unprofessional conduct, the natural effect of which is to expose him to obloquy and to injure him in his business.-Bonestell v. Shaw, 28 Cal. App. 226, 151 Pac. 1149.

1. Failure to deny allegations, effect of.The failure of a mortgagor in an action to foreclose against him and a subsequent purchaser to deny an allegation that the purchaser agreed to assume and pay the mortgage as a part of the consideration of the deed to him does not constitute an admission of such assumption so far as concerns the mortgagor and the plaintiff.-Hibernia Savings & L. Soc. v. Dickinson, 167 Cal. 616, 140 Pac. 265.

2. In an action on a promissory note where the answer sets up a counterclaim for professional services, there is no necessity for further pleading, as the counterclaim is deemed denied. Neither was it necessary to plead the statute of limitations against the counterclaim, as this is deemed pleaded by operation of law.-Pacific Imp. Co. v. Maxwell, 26 Cal. App. 265, 146 Pac. 900.

3. In an action for the foreclosure of a mortgage by an assignee thereof, a motion for nonsuit based upon the ground that plaintiff had failed to produce evidence of the assignment of the note and mortgage is properly denied, where the due execution and delivery of the note and mortgage and the due assignment thereof to plaintiff are alleged in the verified complaint and no denial thereof is made in the answer.-Dunn v. Warden, 28 Cal. App. 202, 151 Pac. 671. 4. Where, in an action on a promissory note, the execution of the note is not denied in the answer, no evidence of due execution is necessary.-Miller & Lux v. Dunlap, 28 Cal. App. 313, 152 Pac. 309. 5.

Where the complaint expressly avers the nonpayment of notes, and the defendant does not negative the averment except by his construction of the written agreement, the payment of the notes is not sufficiently put in issue.-Minor v. Carpenter, 28 Cal. App. 368, 152 Pac. 737.

6. Where the complaint in an action for breach of an agreement to purchase gloves alleges that the nearest market for them was in New York City, and this allegation is not denied in the answer, it must be considered as admitted that New York was the nearest market, and therefore the defendant will not be heard to complain that there was no evidence of the market value of the gloves in Jersey City, where delivery was to be made under the terms of the contract.-Merrill v. Kohlberg, 29 Cal. App. 382, 155 Pac. 824.