§ 541.665. Construction Adopted in California. The courts of one State alone dissent from this course of judicial decision, and give to the general denial of the code something of the comprehensive operation which belonged to the general issues of nonassumpsit and nil debet at the common law. The construction adopted in California seems to regard the general denial- certainly in actions upon contract—as admitting any defences which show that there is no subsisting cause of action at the time of the commencement of the suit. At least the defence of payment is thus held admissible; and, if it be so, other similar defences, such as release, accord and satisfaction, and the like, cannot with consistency be rejected. This doctrine of the California courts is stated and illustrated in the following cases: In an action upon contract the complaint contained three counts, each in the form of the common-law indebitatus assumpsit. The answer was a general denial. Upon these issues the court said: "In each count of the complaint there is an averment that on, etc., the defendant was indebted to the plaintiff in a specified sum, and promised to pay it, but therein has made default. The answer contained a general denial, which made it incumbent on the plaintiff to prove a subsisting indebtedness from the defendant to the plaintiff at the time of the institution of the suit. Under this denial, it would have been competent for the defendant to prove payment.1 For the same reason, it is competent to show that the plaintiff had transferred the demand, and that the defendant, therefore, was not indebted to him."2 In another case upon a promissory note the complaint was in the usual form, setting out the note, and alleging that it had not been paid, and that there was due upon it a specified sum, for which judgment was demanded. The answer was the general denial. "The question is," said the court, "whether the general denial presents any issue of fact. In Frisch v. Caler, 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; and it was contended that that averment was admitted because of the failure on the part of the plaintiff to file

1 Frisch v. Caler, 21 Cal. 71; Brown v. Orr, 29 Cal. 120; Davanay v. Eggenhoff, 43 Cal. 395.

2 Wetmore v. San Francisco, 44 Cal.

294, 299, 300, per Crockett J.; and see especially Fairchild v. Amsbaugh, 22 Cal. 572, 574; Brooks v. Chilton, 6 Cal. 640.

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 answerthat 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.) The doctrine then laid down has not since been departed from, so far as we are aware, except in the case of Hook v. White; and that 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 puts in issue the averment of the complaint, that the promissory note remained due and unpaid." This decision falls far short of sustaining the sweeping doctrine of Mr. Justice Crockett, in the preceding case of Wetmore v. San Francisco, as to the effect of the general denial. When the opinion of Mr. Justice Rhodes is analyzed, it does not in fact lay down any principle different from that maintained by the cases cited from the courts of other States. It simply asserts that the general denial puts in issue the allegations of the complaint, and that the negative averment of non-payment, when traversed in this manner, produces a complete issue, under which evidence of payment may be offered. This is very far from holding, with Crockett J., that the defence of payment is admissible under the general denial in all cases.

§ 542. *666. Twofold Office of General Denial. No Exact

Statement Possible of Particular Defences Admissible under it.

The foregoing extracts from the judgments of so many courts leave little room and little need for any addition by way of comments. The unanimity of opinion in respect to the fundamental principles of pleading embodied in the codes is almost absolute; and this principle has been so clearly formulated by several of the judges, that no difficulty ought to arise in its practical application. The office of the general denial, like that of the old traverses, is twofold: it forces the plaintiff to prove all the material allegations of fact contained in his complaint or petition, and constituting his cause of action, by sufficient evidence at least to make out a prima facie case; it also permits the de

1 Brown v. Orr, 29 Cal. 120.

2 Hook v. White, 36 Cal. 299.

3 Davanay v. Eggenhoff, 43 Cal. 395, 397, per Rhodes J.

fendant to offer any and all legal evidence which controverts those averments, and contradicts the plaintiff's proofs.1 It is clear that no exact statement can be made defining with universal precision what particular issues the general denial raises in all possible cases, and what particular defences it admits; and in this respect it differs from the general issue. As a result of the common-law methods of pleading, and the uniformity of averment necessarily used in all actions of the same class, the operation of the general issue in every suit was exactly defined; and this was especially so after the rules made in 4th William IV. (1834). Certain averments, and none others, of the declaration, were put in issue by it; certain defences, and none others, were admissible under it. This precise rule cannot be laid down in respect of the general denial, because there is no necessary uniformity in the averments of complaints or petitions in actions of the same kind brought on the same substantial facts, and seeking the same relief. As the general denial puts in issue all the material allegations made by the plaintiff, and admits all evidence contradicting them, what issues it actually raises, and what defences it actually admits, in a given case, must depend upon the frame of the complaint or petition, and upon the number and nature of the allegations which the plaintiff has inserted therein. It could be said of the general issue in all actions upon contract, — assumpsit, debt, covenant, - after the rules of Hilary Term, 1834, that the defence of payment was never admissible under it. If we would speak with perfect accuracy, such language cannot be adopted as the expression of a universal rule in respect of the general denial; for the plaintiff may so shape his pleading, and introduce into it such a negative averment of nonpayment, that the proof of payment would be simply supporting the general denials of the answer. Several cases already cited sufficiently sustain the correctness of this position; and others, to be hereafter more particularly referred to in a subsequent portion of this section, and in the next section under the head of Payment, will furnish various examples of this feature of dis

1 [Graves v. Norfolk Nat. Bank (1896), 49 Neb. 437, 68 N. W. 612; Am. Bldg. & Loan Ass'n v. Rainbolt (1896), 48 Neb. 434, 67 N. W. 493; Wiedeman v. Hedges (1901), 63 Neb. 103, 88 N. W. 170; Peterson v. Seattle Traction Co.

(1900), 23 Wash. 615, 63 Pac. 539. "A superfluous plea does not render irrelevant to a general denial matter which would have been relevant in the absence of a special plea:" Horkey v. Kendall (1898), 53 Neb. 522, 73 N. W. 953.]

tinction between the general denial and the general issue.1 Additional cases, bearing upon the nature and effect of the general denial, are collected in the foot-note.2

§ 543.667. Only Material Averments Put in Issue by General Denial. As the general denial forms an issue upon the entire cause of action set up by the plaintiff, and forces him to prove the same substantially as alleged, the question becomes one of great practical importance: What are the averments in the complaint or petition which are thus negatived, and which must be established by sufficient proof on the trial? The full answer to this question belongs rather to a discussion of the requisites of the plaintiff's than of the defendant's pleading, and will be found in Chapter Third. The universally accepted rule is, that only those averments of the complaint or petition which are material and proper are put in issue by a denial either general or specific in its form. Neither "material" nor "proper is, however, synonymous with "necessary." A plaintiff may insert in his pleading allegations which are unnecessary in that position, and which are not in conformity with the perfect logic of the system, but which, when once introduced, become "material," so that an issue is formed upon them by a general or a specific denial. The instance just mentioned, of an allegation of non-payment in the complaint met by a denial

3

1 See Quin v. Lloyd, 41 N. Y. 349; Marley v. Smith, 4 Kan. 183; Frisch v. Caler, 21 Cal. 71; White v. Smith, 46 N. Y. 418; Van Gieson v. Van Gieson, 10 N. Y. 316.

2 Button v. McCauley, 38 Barb. 413; Schular v. Hudson Riv. R. Co., 38 Barb. 653; Schermerhorn v. Van Allen, 18 Barb. 29; Hendricks v. Decker, 35 Barb 298; Perkins . Ermel, 2 Kan. 325; Adams Exp. Co. v. Darnell, 31 Ind. 20; Lafayette & I. R. Co. v. Ehman, 30 id. 83; Watkins v. Jones, 28 id. 12; Frybarger v. Cokefair, 17 id. 404; Bingham v. Kimball, 17 id. 396; Norris v. Amos, 15 id. 365; Hawkins v. Borland, 14 Cal. 413; Goddard v. Fulton, 21 Cal. 430; Evansville r. Evans, 37 id. 229, 236; Hier v. Grant, 47 N. Y. 278; Schaus v. Manhattan Gasl. 'Co., 14 Abb. Pr. N. s. 371; Hunter v. Mathis, 40 Ind. 356; Ammerman v. Crosby, 26 id. 451; Johnson v. Cuddington, 35 id. 43; Brett v. First Univ. Soc.

of Brooklyn, 63 Barb. 610, 616; Catlin v. Gunter, 1 Duer, 253, 265; Robinson v. Frost, 14 Barb. 536, 541; Texier v. Gonin, 5 Duer, 389, 391; Dyson v. Ream, 9 Iowa, 51; Scheer v. Keown, 34 Wis. 349, 356. The conclusions of the text as to what allegations in the plaintiff's pleading the general denial puts in issue and compels him to prove, and what evidence it admits on the part of the defendant, are further illustrated by Paris v. Strong, 51 Ind. 339; Stafford v. Nutt, 51 id. 535; Bate v. Sheets, 50 id. 329; Morgan v. Wattles, 69 id. 260; McWilliams v. Bannister, 40 Wis. 489; Moulton v. Thompson, 26 Minn. 120; School Dist. v. Shoemaker, 5 Neb. 36; Jones v. Seward Cy. Com'rs, 10 id. 154; Scott v. Morse, 54 Iowa, 732; Amador Cy. v. Butterfield, 51 Cal. 526; Elder v. Spinks, 53 id.

293.

8 [Dillon v. Lee (1899), 110 Ia. 156, 81 N. W. 245.]

in the answer, is a familiar example of such averments, material, although not necessary.1

Test to distin

§ 544. * 668. Only Issuable Facts are Material. guish them from Evidentiary Facts. It is an elementary doctrine of pleading under the new system, that only the issuable facts — that is, the conclusions of fact which are essential to the existence of the cause of action, or upon which the right to relief wholly or partially depends in equitable suits are material, and are therefore put in issue by the denial; and the converse of the proposition is true, that the averments of mere evidentiary facts, if inserted in the pleading, are not thus controverted. Although this doctrine is elementary, and appears so simple in the statement, it is nevertheless sometimes exceedingly difficult of application in practice; and the difficulty is enhanced by the frequent inconsistencies of courts in dealing with it. While the general principle, as just stated, is constantly affirmed, yet there are numerous instances of particular causes of action in which the plaintiffs are required to set out in detail matter which is plainly evidentiary, and which is only of value as leading the mind to a conviction that the final or issuable fact, which is one necessary element of the right of action, exists. In other words, the courts have often, while dealing with particular cases, violated the elementary principle which applies, or should apply, to all cases; and the result is confusion and uncertainty. It is possible, however, to distinguish between issuable, material facts, and evidentiary facts, by an unfailing criterion. In all particular instances of the same cause of action based upon the same circumstances, that is, arising from the same primary right in the plaintiff, broken by the same delict or wrong on the part of the defendant, the material or issuable facts which are the essential elements of the right of action must be the same: immaterial circumstances, the time, place, amounts, values, extent of damages, parties, and the like, will be different; but the substantial elements of the cause of action, the facts which constitute it, must in every instance of the same species be the same. On the other hand, the evidentiary matter, the mass of subordinate facts and circumstances which must be actually proved, and from

1 [Riner v. New Hampshire Fire Ins. Co. (1899), 9 Wyo. 81, 60 Pac. 262; Robertson v. Robertson (1900), 37 Ore. 339,

62 Pac. 377; Ball v. Putnam (1898), 123 Cal. 134, 55 Pac. 773.]