Davanay v. Eggenhoff

43 Cal. 395 | Cal. | 1872

By the Court,

Rhodes, J.:

The complaint contains a copy of the promissory note in suit. The answer, among other matters, contains a general denial. The pleadings are not verified. The plaintiff moved for and obtained judgment on the pleadings.

The question is, whether the general denial presents any issue of fact. In Frisch v. Caler, 21 Cal. 14, this question was fully considered. The statute then in force required a replication to new matter in the answer. The answer averred that the note in suit had been paid by the defendant, except a small sum, which was admitted to be then due; and it was contended that that averment was admitted, because of the failure on the part of the plaintiffs to file a replication denying it; but the Court held that it was not new matter; that the failure to pay the note constituted the breach, and must be alleged; and that the allegation in the answer—that it had been paid—was only a traverse of the allegation in the complaint that it had not been paid. (See, also, Brown v. Orr, 29 Cal. 120.) The opinion of Mr. Justice Cope, in the case of Frisch v. Caler, is distinguished for its force and clearness; and the doctrine then laid down has not since been departed from, so far as we are aware, except in the ease of Hook v. White, 36 Cal. 300. In that case the pleadings were verified, and the answer denied on information and belief that the note had not been paid, or that any sum of money was due on it. A denial of that averment, on information and belief, is clearly insufficient. (Humphreys v. Call, 9 Cal. 62; Brown v. Scott, 25 Cal. 195; Vassault v. Austin, 82 Cal. 606.) That was all that the exigencies of that case required to be decided, on the point in question, and the case, so far as it holds that the allegation in the complaint, that the note remains unpaid, is immaterial, and that a denial of the allegation does not put any fact in issue, ought, in our opinion, to be overruled.

The general denial in this case put in issue the averment of the complaint, that the promissory note remained due and unpaid.

Judgment reversed, and cause remanded for a new trial.

Mr. Justice Belcher did not express an opinion.