Goddard v. Fulton

California Supreme Court Jul 1, 1863Published

Before: Norton

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Holding. The court held that affirmative allegations in an answer that merely traverse essential allegations of the complaint do not constitute 'new matter' requiring a replication, even if they explain the circumstances of the transaction.

Issues

Whether the special affirmative matters set forth in the defendant's answer constitute 'new matter' under the Civil Practice Act requiring a replication.
Whether the defendant's answer, which explains the circumstances of the note's creation, functions as a traverse or as a confession and avoidance.

Disposition. reversed

Quotations verified verbatim against the opinion

“Whether matter is new or not must be determined by the matter itself, and not by the form in which it is pleaded, the test being whether it operates as a traverse or by way of confession and avoidance.”

“The facts set up in the answer show that this allegation is not true, and this is all they show. The answer, therefore, is a traverse, and not a confession and avoidance.”

“We conclude, therefore, that the special matters set up in the answer of Fulton were not new matter within the meaning of the Civil Practice Act”

Synopsis

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.

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.

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.

Norton, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring.

This is an action to recover the amount of a promissory note, and to foreclose a mortgage given as security. The complaint alleges that the defendant, Fulton, being indebted to Redick McKee in the sum of $3,000, made a promissory note for that sum, dated July 3d, 1856, and payable to said McKee, or order, six months from date, and delivered the same to the said McKee, who then and there became the legal owner and holder thereof, whereby the said defendant became liable to pay the same to the said McKee, or to his order, according to the tenor and effect of the said note; that a mortgage was executed and delivered as collateral to the note; that on the fifteenth day of March, 1860, the said McKee, being still the owner and holder of said note and mortgage, and the money remaining due and unpaid, the said McKee, for value, sold and assigned said note and mortgage to the plaintiff.

Fulton, by answer, denies that he was indebted to McKee in any sum; and denies that being indebted he made the said note ; and denies that McKee ever was the legal owner or holder of the said note, “ except as hereinafter stated;” and denies that he became liable to pay said note to McKee or his order; and denies that on the fifteenth day of March, 1860, McKee was the owner or holder of said note, or that there was anything due on said note; and denies, upon information and belief, that plaintiff paid value for the pretended assignment; and denies that the plaintiff, by virtue of said pretended assignment, became the owner or holder of said note; and denies that the amount of the said note remains due or unpaid, or that he is justly indebted thereon to the plaintiff. And then the answer proceeds: “ Further answering, he says,” stating in substance that he, Fulton, made the note and mortgage at the request of McKee, to be placed by McKee in the hands of one Swain as security against certain debts due by McKee and Fulton, and to be returned to him, Fulton, when these debts were paid; that these debts having been subsequently paid, he applied to [435]McKee to have the note returned and the mortgage canceled, and that in pursuance of such application McKee procured Swain to redeliver to him the note, and execute a satisfaction piece of the mortgage; and that he, Pulton, supposed said note and mortgage had been duly canceled by McKee, until several years after, when he learned that McKee had omitted to cancel them.

There was a separate answer, setting up a counter claim, and answers by some other defendants.

Goddard v. Fulton

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