Goddard v. Fulton

Citations

• 21 Cal. 430

Syllabus

<p>Where the allegations of an answer, although stated in an affirmative form, are in effect only a denial of the allegations of the complaint, they do not constitute new matter within the meaning of our Practice Act.</p> <p>If the answer either directly or by way of necessary implication admits the truth of all the essential allegations of the complaint which show a cause of action, but sets forth facts from which it results that, notwithstanding the truth of the allegations of the complaint, no cause of action existed in the plaintiff at the time the action was brought, those facts are new matter; but if the facts averred in the answer only show that some essential allegation of the complaint is untrue, then they are not new matter, but only a traverse.</p> <p>To a complaint in the usual form upon a promissory note, an answer was filed admitting the signing of the note but averring that it was made, not on account of any indebtedness existing between the parties but for the purpose of being used as collateral security for a debt due to a third person, from the maker and payee jointly; that the joint debt was subsequently paid, and that the note having thus become functus officio should have been canceled, but through fraud was taken and held by the payee, and transferred without consideration by him to the plaintiff: Held, that these allegations wore not new matter, which, under the system of replications then in force, was admitted by a failure to reply; that their only effect was to deny that any obligation of the character counted upon in the complaint was ever created by the signing of the instrument, and thus to traverse its essential allegations.</p>