H. G. Bittleston Law & Collection Agency v. Howard, 156 P. 515

H. G. Bittleston Law & Collection Agency v. Howard

156 P. 515 | Cal. | 1916

Lead Opinion

This is an action brought by the plaintiff corporation against the defendant for an alleged breach of *358 two agreements in writing whereby the defendant employed R.W. Kinsey, the plaintiff's assignor, as her agent, for the purpose of securing certain loans on real property in the county of Los Angeles, and for the securing of which loans she agreed to pay the said R.W. Kinsey commissions amounting to $342. The said agreements are set forth in two counts in the amended complaint, which purports to be verified by the said R.W. Kinsey. A demurrer was interposed by the defendant to the amended complaint and overruled, whereupon the defendant served and filed an unverified answer in the form of a general denial. The plaintiff moved the court for judgment on the pleadings on the ground that the unverified answer to the verified complaint constituted no defense to the cause of action or any portion thereof. The motion was granted and judgment was entered on the pleadings as prayed for. Defendant appeals.

The sole question presented is whether the amended complaint was properly verified. It is contended, "that the affidavit of verification to the complaint herein and relied upon by the plaintiff upon such motion, is not such an affidavit as to make the complaint a verified pleading within the provisions of section 446 of the Code of Civil Procedure, and was therefore an unverified complaint to which an unverified answer and a general denial is permitted (Code Civ. Proc., sec. 437)." "In this case," says the appellant, "although the affidavit is made by a person who is not a party to the action, it does not state that the facts are 'within the knowledge' of the person verifying, nor does the affidavit set forth the reasons why it is not made by the party."

The affidavit is not open to either of these objections.

Section 446 of the Code of Civil Procedure provides: "Every pleading must be subscribed by the party or his attorney. . . . In all cases of a verification of a pleading, the affidavit of the party must state that the same is true of his own knowledge, except as to the matters which are herein stated on his information or belief, and as to those matters that he believes it to be true, and where a pleading is verified, it must be by the affidavit of a party, unless the parties are absent from the county where the attorney has his office, or from some cause unable to verify it, or the facts are within the knowledge of his attorney or other person verifying the same. When the pleading is verified by the attorney, or any *359 other person except one of the parties, he must set forth in the affidavit the reasons why it is not made by one of the parties. When a corporation is a party, the verification may be made by any officer thereof. . . . " The affidavit of verification is as follows:

"R.W. Kinsey, being duly sworn, deposes and says: That he 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."

The affidavit, it will be noted, contains the usual qualification of the statute — "except as to the matters which are therein stated on his information or belief." But the complaint contains no allegation based on information and belief, and therefore the averment must be treated as mere surplusage. (Lassen v. Board of Dental Examiners, 24 Cal.App. 767, [142 P. 505].) As no fact is stated in the body of the complaint upon the information and belief of affiant, the verification is to be regarded as a positive affirmance of the truth of the allegations of the complaint, notwithstanding the use of the form of the verification containing the usual words "except as to matters which are therein stated on information and belief." (Christopher v. Condogeorge, 128 Cal. 581, [61. Pac. 174]; Patterson v. Ely, 19 Cal. 28.)

Omitting the averment based on information and belief from the affidavit, it still states that the affiant has read the complaint and knows the contents thereof, and that the same is true. This is clearly the equivalent of an averment in the exact language of the section — that "the facts are within the knowledge" of the affiant. But, in addition to the above, the affidavit avers that the affiant is the assignor of the plaintiff, and the agreements, which are set out in the complaint, show that they were entered into between the affiant and the defendant. The requirements of this branch of the section were fully complied with.

Nor does the affidavit fail to state the reasons why the verification was not made by the plaintiff corporation. As already stated, the complaint alleges that the agreements were entered into between the affiant and the defendant. The *360 former therefore had primary knowledge of the facts. He subsequently assigned the claim to the corporation. While it does not affirmatively appear whether the corporation or its officers had knowledge of the facts relating to the transactions between the affiant and the defendant, it cannot be doubted that the affiant was qualified to verify the facts from first-hand knowledge. "The object of the verification is to insure good faith in the averments of the party." (Patterson v. Ely, 19 Cal. 28.) Upon all the facts the reason sufficiently appears why the affidavit was made by the assignor instead of one of the officers of the plaintiff corporation. 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.

In Newman v. Bird, 60 Cal. 372, the affidavit of verification is made by the agent of the party who states that he is such agent; that he has heard read the complaint; that he knows the contents thereof; that the same is true of his own knowledge; and that he therefore swears that the facts, stated in the complaint, are within his own knowledge and that they are true. The court said: "The reason given in this case for the verification of the complaint by the agent is, that the facts are within his knowledge, and that brings the case within the language of the section of the Code above cited. We are therefore of the opinion that the complaint was properly verified."

In that case the verification was held sufficient because it was made by an agent who averred that the facts set out in the complaint were within his own knowledge. In this case the affiant states that he is the assignor of the corporation; that the facts are true of his own knowledge; and for the reason that he is the assignor of the plaintiff he is better informed as to the facts. This is a sufficient statement of the reason why the verification is not made by the plaintiff.

Silcox v. Lang, 78 Cal. 118, [20 P. 297], is relied upon by the appellant to establish the insufficiency of the verification here. But we think the case is clearly distinguishable on the facts. The affiant in that case, the attorney for the defendants, averred "that he has read the foregoing answer and knows the contents thereof, and that the same is true *361 of his own knowledge." This is the same as the corresponding averment in this case and by itself would constitute an averment that the facts are within his knowledge. But the two cases are not otherwise identical.

Under section 446 of the Code of Civil Procedure the verification may be made by the attorney, or another person, when the party is absent from the county, or from some cause unable to verify the pleading, and in the presence of either of these conditions the verification may be made by the attorney or other person on information or belief. Or, if the facts are within the knowledge of the attorney or other person, either may verify the pleading without regard to the existence of such conditions. In Silcox v. Lang, 78 Cal. 118, [20 P. 297], the affidavit of the attorney purported to aver his knowledge and information or belief. It does not appear whether the answer contained any allegations based on information or belief. But, inasmuch as the affidavit did not state as a reason for the attorney making the affidavit either the absence or inability of the party, the averments on information or belief added nothing to the verification. The attorney, evidently in an attempt to comply with the clause of the section calling for the reasons why the affidavit was not made by the party, averred that "as such attorney the facts are more fully known to him than said defendants, and therefore he makes this affidavit." The court held that the affidavit was insufficient because it did not aver that the facts were within the knowledge of the attorney, and "shows no reason why the pleading might not have been verified by the parties." It is apparent from the decision that the averment as to the information or belief of the attorney, and that which purports to state the reason why the parties did not make the verification, were held to qualify the preceding averment as to the knowledge of the affiant, and hence that the affiant did not in direct terms aver that the facts were "within his knowledge" as was necessary since the affidavit did not state that the parties were absent or unable to act. Newman v. Bird,60 Cal. 372, was not referred to in the decision.

In this case the averments covering the reasons why the corporation did not verify the complaint does not qualify the averment that the facts were within the knowledge of the affiant. On the contrary, the averment that he is the assignor and for that reason is better informed than the corporation *362 adds force to the averment that the facts are true of the assignor's own knowledge. All the averments of the affidavit, when read in connection with the complaint, affirm a primary knowledge of the facts on the part of the assignor, and this must be deemed a sufficient statement of the reasons why the party did not verify the complaint.

The plaintiff in this case is a corporation and the affiant is not an officer thereof. But the clause in section 446 providing for verification of a pleading by an officer when the corporation is a party is not exclusive. It is permissive only, and does not exclude an attorney or other person from making the verification in a proper case. (See High Rock Knitting Co. v. Bronner, 28 Misc. Rep. 627, [43 N.Y. Supp. 725].) The clause is qualified by the preceding part of the section, and is not to be construed as a limitation that only the officers of a corporation can verify the pleadings thereof.

The motion for judgment on the pleadings, without a preliminary motion to strike the answer from the files, was proper. (Hearst v. Hart, 128 Cal. 327, [60 P. 846].)

No other points require consideration. The judgment is affirmed.

Concurrence Opinion

I concur in the judgment. The affidavit shows that the facts were within the knowledge of the affiant Kinsey. He declares "that he has read the foregoing complaint and knows the contents thereof and that the same is true of his own knowledge. . . . " The statement that facts are true of one's own knowledge necessarily imports that the facts are within his knowledge. The added words "except as to matters which are therein stated as to information and belief" do not qualify the positive character of the verification, since the pleading contains no averments on information and belief. The verification, therefore, fully meets the provision of section446 of the Code of Civil Procedure, allowing a person not a party to verify where the facts are within his knowledge.

I am, however, unable to see any distinction in this respect between the case at bar and Silcox v. Lang, 78 Cal. 118, [20 P. 297]. The verification which was there held to be insufficient was in the same form as the one before us. There is nothing in the report of the Silcox case to show that the pleading there in question contained any allegation on information *363 and belief. I think, therefore, that Silcox v. Lang, should, so far as it touches the point under discussion, be distinctly and unequivocally overruled.

I agree to the view that the affidavit contains a sufficient statement of the reasons why it is not made by one of the parties.

Concurrence Opinion

Rehearing denied.