The Snipsic Co. v. Smith

HALL, J.

This is an appeal from judgment rendered against defendant for failure to further plead after demurrer sustained to his answer.

The complaint states a cause of action for goods sold and delivered by plaintiff’s assignor to defendant, and is unverified.

The answer sets up two defenses. The first specifically denies every allegation of the complaint, including the allegation of nonpayment and of the assignment to plaintiff.

As a separate defense defendant set up as affirmative matter that he was fraudulently induced to sign the writing referred to in the complaint.

[151]

The demurrer to the answer was a general demurrer to the entire answer, and not a demurrer to each separate defense.

As the first defense was separately pleaded, ending with a demand for judgment, it is difficult to see upon what theory the demurrer was sustained. The denials of the first defense present a perfect answer to the cause of action, and any admissions, if we assume that there are any in the second and separate defense, cannot be regarded as destroying the effect of such denials.

(Banta

v.

Siller,

121 Cal. 414, [53 Pac. 935] ;

Nudd

v.

Thompson,

34 Cal. 39 ;

Amador County

v.

Butterfield,

51 Cal. 526 ;

Botto

v.

Vandament,

67 Cal. 332, [7 Pac. 753] ;