9 Colo. 200 | Colo. | 1886
Under the statute, in order to present issues upon the genuineness and due execution of the instruments copied into the complaint, the answer should have been verified. Therefore, in so far as these issues are concerned, the ruling of the district court was unquestionably right. Bat the answer also denies that the notes were due, and the only question presented to us for consideration is the effect of this denial. The failure to verify the answer, the complaint being unverified, only estopped defendants from attacking the genuineness and due execution of the notes in controversy. The statute did not operate to prevent them from trying other material questions that may have been presented by proper allegation and denial in the pleadings. It was consistent with the admission that the notes were genuine and duly executed to aver and prove that the dates of maturity appearing therein had been changed. Did the pleadings in the case at bar properly present such a question for trial?
Ho cause of action exists unless the indebtedness sued for is due. • It is therefore necessary, in actions like the one at' bar, that the complaint should sufficiently cover this subject. But while this is true, it is also true, especially under code procedure, that the maturity of the indebtedness, like everything else material to a recovery, should he shown by facts stated. It is not enough for plaintiff to simply aver that the indebtedness is due. Such averment is the statement of no fact. It is, on the contrary, the declaration of a mere legal conclusion, drawn from facts that should themselves be pleaded.
But it is a well-known general rule of pleading that the statement and denial of pure conclusions of law, i. e., those unmixed with conclusions of fact, present no issue for trial. To traverse the allegation that the indebtedness is due, without denying the facts averred which show such maturity, is vicious pleading. It leaves the question of maturity wholly admitted. A good illustration of this fault is furnished by the case at bar. Defendants, as we have seen, by failing to verify their answer, admitted the genuineness and due execution of the notes as pleaded. This admission covered the whole tenor and effect of the instruments. Burnett v. Stearns, 33 Cal. 468. But according to the tenor thereof, the indebtedness represented thereby was due. Defendant, therefore, simply denied a legal conclusion, while admitting the facts upon which it was based. If, through collateral, contemporaneous or subsequent valid agreements, the time of payment stated in the notes was extended, it is evident that the agreements for such extension were new matter and should have been specifically pleaded in the answer.
That the right of action had not accrued when the suit was commenced is ground for plea in abatement at common law; but, according to Prof. Pomeroy, “all defenses which are analogous to the ancient pleas in abatement,— that is, all which are based upon the same facts,— are evidently new matter. They cannot be proved under the general denial, but must be specifically pleaded.” Pom. Rem. §§ 697, 711; Hargan v. Burch, 8 Iowa, 309. It is true that at common law this question was frequently tried under the general issue' (Gould, Pl. §138; Monro v. King, 3 Colo. 238; Heaton v. Myers, 4 Colo. 59); though such proceeding in actions of assumpsit was highly illogical and was finally repudiated in England. See McKyrng v. Bull, supra. At present, however, there is no such thing known to our system of pleading
With reference to the case of Davanay v. Eggenhoff, 43 Cal. 395, relied upon by appellants, we have this to say: First. A careful reading of the opinion shows that decision to have rested upon the question of payment. The complaint averred that the note remained due and unpaid. Defendant pleaded a general denial. This the court held, sufficient to make an issue on the matter of payment. The subject of maturity, which is wholly distinct from that of payment, was not considered. Secondt. In California, where actions are brought upon promissory notes, it is held necessary for plaintiff to expressly aver the fact of non-payment. The rule is different in all other code states wherein the question has been considered; though in them, if plaintiff does make the averment, a denial thereof, general or special, as their respective statutes provide, authorizes defendant to introduce proof of payment. Pom. Bern. § 710. Therefore that case would, at' most, only be authority in appellants’ favor, had they traversed by answer the averment of nonpayment, which they did not do.
It follows from the foregoing views that under the pleadings defendants were not entitled to offer evidence disproving the maturity of the indebtedness sued upon. The district court committed no eiror in rendering judgment for plaintiff without a trial. •
Affirmed.
