without a denial. Thus, in actions of trover, trespass, or replevin, it was not necessary to traverse the averments as to the value of the chattels, and as to the amount of damages; and the same rule prevails in all actions brought for a similar purpose under the new system. "The defendant is not bound to answer all matters of evidence which the plaintiff chooses to allege. The office of the complaint is to aver the material, issuable facts which constitute the cause of action, and not the evidence to prove these facts. It is only material allegations that are admitted when not specifically controverted by the answer." 2 "The scope of the general denial is merely to put in issue such averments of the complaint as the plaintiff is bound to prove in order to maintain his action: it does not controvert redundant allegations." 3

1 Jenkins v. Steanka, 19 Wis. 126. 2 Racouillat v. Rene, 32 Cal. 450, 455, per Sawyer J.; Siter v. Jewett, 33 Cal. 92.

[Gattis v. Kilgo (1901), 128 N. C. 402, 38 S. E. 931. And only such facts are admitted as are properly pleaded: Doud v. Duluth Milling Co. (1893), 55 Minn. 53, 56 N. W. 463.]

8 Adams Exp. Co. v. Darnell, 31 Ind. 20, 22, per Frazer J.; Baker v. Kistler, 13 Ind. 63. For an example of immaterial denial, see Newman v. Springfield F. & M. Ins. Co., 17 Minn. 123, 133. Further illustrations of the text, Bonnell v. Jacobs, 36 Wis. 59; Katzhausen v. Koehler, 42 id. 232; State v. Russell, 5 Neb. 211; Cook v. Smith, 54 Iowa, 636; Fargo v. Ames, 45 id. 494; Stair v. Cragin, 24 Hun, 177; Thompson v. Thompson, 52 Cal. 154.

[Miscellaneous Rules Respecting

Admissions.

"Imperfect and defective denials, if acted upon as sufficient at the trial, are in no sense admissions of the allegations of a pleading which are attempted to be denied:" Loftus v. Fischer (1895), 106 Cal. 616, 39 Pac. 1064 Where a defendant admits a bond pleaded by plaintiff, his denial of certain of its plain and specific provisions is unavailing: Aikens v. Frank (1898), 21 Mont. 192, 53 Pac. 538. In an action of ejectment by a tenant in common against his co-tenant, a denial in the answer of the plaintiff's title and right of

entry is equivalent to an ouster, as of the date of the commencement of the action, and the ouster is therefore admitted on the pleadings: Plass v. Plass (1898), 121 Cal. 131, 53 Pac. 448. In an action to obtain an accounting of a partnership, where plaintiff alleges that no settlement of the partnership affairs has been had and the defendants specifically deny this allegation, an admission in the answer that an error was made in preparing the balance sheet on which the settlement was founded, is pro tanto a limitation upon the denial that there had been no settlement: Rankin v. Newman (1895), 107 Cal. 602, 40 Pac.

1024.

"Where the answer admits material allegations of the complaint, but accompanies the concession with a statement of affirmative matter in explanation by way of defence, the plaintiff may avail himself of the admissions without the qualifications:"" Cook v. Guirkin (1896), 119 N. C. 13, 25 S. E. 715. "If during the trial of an action, new matter pleaded in the answer is treated by the parties as denied or placed in issue, it will be so considered in this court, although no, or an imperfect, reply was filed: " Minzer v. Willman Mercantile Co. (1899), 59 Neb. 410, 81 N. W. 307. While a party may withdraw his pleadings, he cannot by such withdrawal avoid the effect of the admissions made: Cooley v. Abbey (1900), 111 Ga. 439, 36 S. E. 786.

But where allegations, not denied, are

§ 509.618. Negatives Pregnant. How they may arise. Such a denial is one pregnant with an admission of the substantial fact which is apparently controverted; or, in other words, one which, although in the form of a traverse, really admits the important fact contained in the allegation. As an illustration: If the averment was that the defendant on the first day of January made a note, and the answer should deny that the defendant on the first day of January made the note, this might be construed as an admission that he made the note on some other day: or if the complaint stated that "the defendant wrongfully and forcibly entered the plaintiff's close," and the answer should deny "that the defendant wrongfully and forcibly entered the plaintiff's close," the fact of entering the close might be considered as admitted. Of course, a denial to produce this result must of necessity be specific; for the general denial of "each and every allegation in the complaint" cannot be pregnant with any admission.1 Denials in the form of a negative pregnant arise (1) when the allegation is of a single fact with some qualifying or modifying circumstance, and the traverse is in ipsis verbis, using exactly the same language, and no more; and (2) when the allegation is of several distinct and separate facts or occurrences connected by the copulative conjunction, and the traverse is in ipsis verbis of the same facts and occurrences also connected by the same conjunction. In most of the reported decisions, the courts have held such forms of denial to be insufficient, and have declared that they raised no issues, treating the statements of the complaint or petition as actually admitted. This was the universal rule under the old system; and as it was not based upon any merely technical reasons, or doctrine of pleading, the same rule is properly followed under the codes.2

treated as in issue on the trial, the omission of a denial will be deemed waived: Albion Milling Co. v. First Nat. Bank (1902), 64 Neb. 116, 89 N. W. 638; Crossland v. Admire (1899), 149 Mo. 650, 51 S. W. 463; Conant v. Jones (1893), Idaho, 32 Pac. 250; Missoula Co. v. O'Donnell (1900), 24 Mont. 65, 60 Pac. 594.]

1 German Am. Bk. of Hastings v. White, 38 Minn. 471, overruling earlier Minnesota cases.

See Pottgieser v. Dorn, 16 Minn. 204, 209; Lynd v. Picket, 7 Minn. 184,

194; Dean v. Leonard, 9 Minn. 190. The following cases furnish illustrations of the text: Dole v. Burleigh, 1 Dak. 227; Hanning v. Bassett, 12 Bush, 361; Morgan v. Booth, 13 id. 480; Harden v. Atchison, etc. R. Co., 4 Neb. 321; Crane v. Morse, 49 Wis. 368; Norris . Glenn, 1 Idaho, 590; Lorney v. Cronan, 50 Cal. 610; Prior v. Madigan, 51 id. 178; Leroux v. Murdock, 51 id. 541; Argard v. Parker, 81 Wis. 581; Pullen v. Wright, 34 Minn. 314; James v. McPhee, 9 Colo. 486. [Curnow v. Phoenix Ins. Co. (1895), 46

§ 510. * 619. Illustrations. A few examples will illustrate the nature of these denials, and the decisions of the courts thereon. In an action upon a promissory note against the indorser, the answer, copying the exact language of the complaint, said: “That whether or not, upon the maturity of the said note, the same was duly presented to the makers for payment, and payment thereof demanded and refused, and thereupon said note was duly protested for non-payment and notice of such presentment, refusal, and protest, given to the defendant, the defendant has no knowledge or information sufficient to form a belief." This denial was pronounced bad as a negative pregnant, and was disregarded.1 In an action upon a fire policy against the insurers, the defendants moved for leave to file an amended answer. In denying this motion, the court said: "The denials are all liable to the objection that they are negatives pregnant. The complaint avers that on a particular day the property was all destroyed by fire. The answer denies this in the very words of the complaint. Such a denial is a negative pregnant with the admission that it may have been destroyed on some other day, or that a part may have been destroyed on the day named. Such denials have always been held insufficient."2 A complaint alleging that "the proofs of loss were filed with the secretary of the defendant on the 31st of March, 1866," the denial was, that the proofs were filed "as alleged in the complaint." This was declared to be pregnant with the admission that they were filed on another day within the time required.3 § 511. * 620. Illustrations. When a verified complaint contained many distinct allegations conjunctively stated, and the

S. C. 79, 24 S. E. 74, quoting the text; Columbia Nat. Bank v. Western Iron & Steel Co. (1896), 14 Wash. 162, 44 Pac. 145. But a negative pregnant does not operate to prevent an express denial of the same fact from putting it in issue: Kennedy v. Dickie (1902), 27 Mont. 70, 69 Pac. 672.]

the defendant, an answer denying that he performed such work and labor at the request of the defendant admitted the performance of the services by the plaintiff.

3 Schaetzel v. Germantown, etc. Ins. Co., 22 Wis. 412. See also Robbins v. Lincoln, 12 Wis. 1. In McMurphy v.

1 Young v. Catlett, 6 Duer, 437, 443, Walker, 20 Minn. 382, 384, the complaint per Woodruff J.

2 Baker v. Bailey, 16 Barb. 54; Salinger v. Lusk, 7 How. Pr. 430. See Bradbury v. Cronise, 46 Cal. 287, where, the complaint alleging that the plaintiff did certain work and labor at the request of

on a note alleging that it was delivered on the 10th of September, 1868, an answer stating that it "was not delivered until after Sept. 10, 1868,” was held to raise no issue.

answer consisted of denials of these averments in ipsis verbis also conjunctively stated, following in this manner the exact language of the entire complaint, the court ordered a judgment for the plaintiff on the pleadings, saying: "This mode of answering is in violation of the principles of common-law pleading, and not less so of the statute which provides that the defendant's answer to a verified complaint shall contain a specific denial of each allegation controverted, or a denial thereof according to the defendant's information and belief." The complaint in an action to recover possession of chattels alleged that "defendant unlawfully and wrongfully seized and took said property into his possession from said plaintiff;" and the answer denied "that he wrongfully and unlawfully seized and took said property," etc. This answer, it was held, admitted the taking. It is the settled rule in California that conjunctive denials, in the very language of conjunctive allegations, raise no issues.3

§ 512. *621. Illustrations. In an action to foreclose a mortgage given to secure a bond, the complaint alleged the execution of the bond for $4,000, with a provision in it, that, if default should be made in the payment of interest for thirty days, the whole principal sum should become due at the option of the plaintiff; and set out the mortgage, averring that it contained the same provision, that interest had been due more than thirty days, and that plaintiff made his election to regard the whole principal as due. The defendant in his answer admitted the execution of the bond and mortgage, "but he denies that the said bond and mortgage contained any condition or clause whereby, in case of a default in payment of interest for the space of thirty days, the principal sum was to become due and payable immediately, as alleged in said complaint, as by reference to said mortgage will more fully appear." This defence was

1 Fish v. Redington, 31 Cla. 185, 194. 2 Woodworth v. Knowlton, 22 Cal. 164. See also Feeley v. Shirley, 43 Cal. 369; Harris v. Shontz, 1 Mont. 212, 216; Toombs v. Hornbuckle, 1 Mont. 286. On the other hand, it was held in Jones v. Eddy, 90 Cal. 147, that an allegation in the complaint that defendants "assumed and agreed" to pay a debt, amounted merely to an allegation that they "agreed'

struck out as frivolous, the court saying: "This is a denial that both of the instruments contained the clause in question. It is not a denial that one of them contained it. The bond and the mortgage together constituted but one instrument. The latter refers to the former as affording particular evidence of the terms of payment. Such reference incorporates into the mortgage all the terms and conditions of the bond. The only denial was of their joint effect. This was an admission as to the bond." The defence, therefore, did not put in issue the allegation of the complaint, that the whole amount was due.1