exact adherence to the text of the adverse averment may be dangerous, as the result may be an admission of the substantial fact intended to be put in issue.

§ 505. * 614. Issuable Facts as Distinguished from Evidentiary Facts and from Conclusions. The object of all denials is to put in issue the allegations of the complaint or petition. As will be shown hereafter under the head of the proofs which may be admitted in support of a simple denial, it is only the issuable facts which need to be controverted, and which are in fact controverted, by the defendant's traverse. It frequently, and indeed generally, happens that the cause of action depends upon the existenceof a succession or group of facts. Each of these must be established in order to make out the right of action, and all are therefore "issuable facts." In addition thereto, the plaintiff's pleading will often contain other averments which must be stated, but which need not be proved as stated, among which are those of time, place, number, quantity, value, and the like. Finally, it happens too frequently, that besides the statements of these strictly "issuable facts," which are all that the pleading should comprise, the plaintiff has unnecessarily, and in a certain sense improperly, introduced averments of matters which are really the details of evidence from which the existence of the "issuable facts" is to be inferred by the jury or the court. It is not always easy to distinguish in a complaint or petition between the main conclusions of fact, the issuable or material facts, -all and each of which are indispensable to create the right of action, and the mere details of evidence which must be proved at the trial in order to establish the essential "issuable facts;" and the careless mode of pleading which has grown up in some States, contrary to the true intent and spirit of the reformed procedure, results chiefly from a disregard of the distinction here mentioned, and is shown in a confused admixture of evidentiary matter, allegations of substantial facts, and conclusions of law, in the same complaint or petition.

§ 506. * 615. Function of the Specific Denial. When the series of issuable facts which would make up the plaintiff's cause of

that the conditions have been performed, and specifies the particulars in regard to which there has been non-compliance, the defendant waives all grounds not specified: Coffin v. Black (1899), 67 Ark. 219, 54

S. W. 212. "A denial, though coupled
with an allegation showing a lack of
knowledge of the matters denied, is suffi-
cient to raise an issue:" Smith v. Allen
(1901), 63 Neb. 74, 88 N. W. 155.]

action are properly stated, it will frequently happen, especially if the pleadings are verified, that the defendant cannot deny them all. Some of them may be true, so that an issue upon them is impossible. But if one or more are not true, and can therefore be controverted, and if the existence of all is indispensable to the right of action, a denial of that particular allegation, or of those particular allegations, may be as complete a defence as though the entire series was traversed and disproved. The forming such an issue upon some one or more particular averments out of the whole number contained in the complaint or petition is the legitimate and proper office of the "special denial," and by its use in this manner an ample defence may be placed upon the record. A "specific denial" is therefore a denial of some particular averment in the complaint or petition; and whether or not it alone raises a material issue, and constitutes a sufficient defence, depends upon the question, whether the particular allegation thus traversed is in itself essential to the maintenance of the cause of action. There may, of course, be several such specific denials inserted in the same answer, directed to distinct averments of the adverse pleading, and together constituting a defence differing from that raised by the "general denial" in the single circumstance, that by the latter all the issuable facts are put in issue, while by the former only a portion of them are controverted. As each specific denial is aimed at a particular averment, it should expressly and unmistakably point out the statement of fact intended to be traversed; it should deny that allegation fully and explicitly, so that the plaintiff may be forced to establish it by proofs; and it should leave no doubt as to the matter at which it is aimed, and as to the issue intended to be made.2

1 [Where the denial in an answer relates solely to an averment which presents no ground for relief, such denial will be treated as surplusage: Chicago, etc. Ry. Co. v. Phillips (1900), 111 Ia. 377, 82 N. W.787.

In Bowman v. Bowman (1899), 153 Ind. 498, 55 N. E. 422, the court said: "If an allegation in the opposite pleading be altogether immaterial, it cannot be traversed; otherwise the object of pleading, viz., the bringing the parties to an issue upon a matter or point decisive of the merits, would be defeated. And, upon this

ground, it is said, that mere matter of aggravation, not going to the cause of action, or mere inducement or explanatory matter, not in itself essential to, or the substance of, the case, should not be traversed."]

2 [To deny an averment specifically it must be singled out and denied apart from others in the same paragraph with which it is connected: Woronieki v. Pariskiego (1901), 74 Conn. 224, 50 Atl. 562. See also Boyle v. McWilliams (1897), 69 Conn. 201, 37 Atl. 501.

Where an answer contains a denial of

$507. * 616. Illustrative Case. The object of this kind of denial, and the rules which govern its use, were accurately stated in a recent case: "To determine whether an allegation has been properly denied or not, we must examine the answer to the particular allegation which it is designed to controvert. If, taken by itself, an issue is fairly made, and there is no admission inconsistent with the answer, the denial is sufficient. . . . Each denial must be regarded as applying to the specific allegation it purports to answer, and not as forming part of an answer to some other specific and entirely independent allegation." A single case, an abstract of which is placed in the foot-note, will serve to illustrate the object and effect of the specific denial.2 As the defendant in this action could not controvert his signature to the instrument, the pleader evidently supposed that it was impossible for him to deny the execution in the answer since the pleadings were verified; he therefore traversed but one issuable fact, -the delivery. Success in this issue was as complete a defence as though the execution

any material allegation, a general demurrer to the entire answer cannot be sustained: Hill v. Walsh (1894), 6 S. D. 421, 61 N. W. 440; Lee v. Mehew (1899), 8 Okla. 136, 56 Pac. 1046; City of Guthrie v. Lumber Co. (1897), 5 Okla. 774, 50 Pac. 84.]

1 Racouillat v. Rene, 32 Cal. 450, 453, 455, per Sawyer J.; and see Allis v. Leonard, 46 N. Y. 688.

2 Sawyer v. Warner, 15 Barb. 282, 285. The complaint, in an action upon a promissory note, alleged the making of the note by the defendant, the delivery thereof by the defendant to the plaintiff, the present ownership of the plaintiff, nonpayment, and indebtedness of the defendant thereon in the amount specified therein. The answer merely denied that the defendant ever gave" the said note or any other note to the plaintiff, and denied all indebtedness. On the trial, the plaintiff proved the signature of the note to be in the defendant's handwriting, and his own possession. The body of the instrument was in the plaintiff's handwriting. The defendant then proved facts tending to show that he never executed the instrument as a note, and never de

livered it to the plaintiff, but that he had some time written and left his name on a blank paper, and the plaintiff had fraudulently added the body of the note over such signature. The jury rendered a verdict for the defendant; and, upon the plaintiff's appeal, the court said: "The allegation in the answer that the defendant never gave the note to the plaintiff is a denial of the allegation in the complaint that the defendant made the note, so far as making includes delivery; and also of the further allegation, that the defendant delivered the note to the plaintiff. The question to be tried on these allegations was, whether or not the note was delivered to the plaintiff as alleged by him. . . . The plaintiff made out this fact prima facie. . . . But the defendant was at liberty, in support of his side of the issues, independent of other modes, to prove facts inducing a contrary presumption, and, in that way, overcome the presumption from the plaintiff's proof; and he was entitled to give in evidence any facts calculated to satisfy the jury by fair and direct inference that the note was never delivered by him."

had also been disproved. It is plain, however, that the "general denial" might have been pleaded; for, if the defence was true, there had never been any execution or delivery of the note in the legal sense of these terms.1

$ 508. * 617. Allegations Admitted by Failure to deny. All the codes provide that material allegations in the complaint or petition, not controverted by a general or specific denial, are admitted to be true for the purposes of the action. It follows

that the plaintiff need not prove any material allegations so conceded to be true; evidence in contradiction of them cannot be received; and a finding of fact in opposition to such admission will be disregarded or set aside on appeal. The important question is, What facts or allegations are "material"? The answer has already been indicated. The allegations of the "issuable facts" mentioned in the last preceding subdivision, and described at large in Chapter Third, are the material allegations, which are admitted by a neglect to deny them. It follows that the two other classes of averments found in complaints and petitions, viz., those of time, place, quantity, value, amount, and the like, and those of unnecessary evidentiary matter, or of legal conclusions, are not thus admitted. They need not be denied, and are not the subject-matter of proper issues upon the pleadings. The allegations of time, place, amount, value, amount of damages, and the like, are not, except in very special cases, matters of substance so as to require a denial; and they may, in general, be contradicted or modified

Pac. 213; Merguire v. O'Donnell (1894), 103 Cal. 50, 36 Pac. 1033; Pitzer v. Territory of Oklahoma (1896), 4 Okla. 86, 44 Pac. 216; Boles v. Bennington (1896), 136 Mo. 522, 38 S. W. 306; Parke v. Boulware (1901), Idaho, 63 Pac. 1045; Capitol Lumbering Co. v. Learned (1899), 36 Ore. 544, 59 Pac. 454; Harlan County v. Hogsett (1900), 60 Neb. 362, 83 N. W. 171; Davis v. First Nat. Bank (1899), 57 Neb. 373, 77 N. W. 775; Baker v. Peterson (1899), 57 Neb. 375, 77 N. W. 774; Lonergan v. Lonergan (1898), 55 Neb. 641, 76 N. W. 16; Equitable Trust Co. v. O'Brien (1898), 55 Neb. 735, 76 N. W. 417; Hartzell v. McClurg (1898), 54 Neb. 313, 74 N. W. 625; Stewart v. Am. Ex. Bank (1898), 54 Neb. 461, 74 N. W. 865; Rohman v. Gaiser (1898), 53 Neb. 474, 73 N. W. 923; Van Etten v. Kosters (1896), 48 Neb. 152, 66 N. W. 1106; Scofield v. Clark (1896), 48 Neb. 711, 67 N. W. 754; Maxwell v. Higgins (1893), 38 Neb. 671, 57 N. W. 388; Smith v. Coe (1902), 170 N. Y. 162, 63 N. E. 57; Bouscaren v. Brown (1894), 40 Neb. 722, 59 N. W.385; Douglas County v. Bennett (1901), -61 Neb. 660, 85 N. W. 833; White v. Costigan (1903), 138 Cal. 564, 72 Pac. 178; Herring-Hall-Marvin Co. v. Smith (1903), 43

Ore. 315, 72 Pac. 704. But allegations of value and damages are not admitted by failure to deny them: Baker v. Peterson (1899), 57 Neb. 375, 77 N. W. 774; Hartzell v. McClurg (1898), 54 Neb. 313, 74 N. W. 625; Grant v. Clarke (1899), 58 Neb. 72, 78 N. W. 364.

Admissions in pleadings are conclusive: Nugent v. Powell (1893), 4 Wyo. 173, 33 Pac. 23; Gadsden v. Thrush (1898), 56 Neb. 565, 76 N. W. 1060. Facts admitted in the pleadings need not be proved: Johnson v. Reed (1896), 47 Neb. 322, 66 N. W. 405; Bradfield v. Sewall (1899), 58 Neb. 637, 79 N. W. 615; Knight v. Finney (1899), 59 Neb. 274, 80 N. W. 912. But a party is not bound by admissions in abandoned pleadings: Mahoney v. Hardware Co. (1897), 19 Mont. 377, 48 Pac. 545. But they must be proved as against infant defendants, under Code, § 126: Leslie v. Maxey (1902), Ky., 67 S. W. 839.]

1 Morton v. Waring's Heirs, 18 B. Mon. 72, 82; Bradbury v. Cronise, 46 Cal. 287; Howard v. Throckmorton, 48 Cal. 482, 490.

[Goldwater v. Burnside (1900), 22 Wash. 215, 60 Pac. 409.]