Perkins v. Brock

Hayne, C. Action by the assignee of an insolvent partnership to recover certain personal property alleged to have been transferred in fraud of creditors. Judgment passed for the defendants, and the plaintiff appeals.

The findings negative the charges of fraud. And as the evidence is not brought up, the findings must be taken to be true.

The main contention of the appellant is, that the transfer was void for want of authority in the person who made it. The only difficulty arises from inattention to a few simple rules of pleading.

The plaintiff began by placing inconsistent allegations in the same count of his complaint. He alleged: 1. That the firm transferred the property, and then that the [321]transfer was made by one partner without the consent or knowledge of the other, and was of the whole property of the firm. These allegations are inconsistent, because one partner has no power or authority to make such a transfer, except in certain contingencies, which do not arise here. (Civ. Code, sec. 2430.) The first allegation cannot, in favor of the plaintiff, be construed as a mere conclusion, because the rule is, that pleadings are to be construed most strongly against the pleader. Nor, for the same reason, will the complaint be construed as alleging that the transfer was in the name of the firm, and purported to be by its authority, but was void for want of authority,—though even if this latter construction were adopted, it would not change the conclusion which we have reached. The two allegations are incon■sistent. If the person making the transfer had no ■ authority to bind the firm, it follows that the firm did not make the transfer.

The defendants did not deny the allegation showing a want of authority, but averred affirmatively that the firm transferred the property. And it is now contended .for the plaintiff that the pleadings admitted the want of authority to. transfer, and that the finding to the.contrary is against such admission, and must, therefore,' be disregarded.

It seems plain that if a complaint first alleges a fact, and then, in the same count, alleges the contrary (the latter allegation not being of mere evidence), and the ^defendant does not choose to demur specially for uncertainty (see Blasingame v. Home Ins. Co., 75 Cal. 636), it is sufficient to deny the statement which he wishes to controvert, leaving the other unnoticed. In such cases, the denial of one- statement would be construed as an affirmation of the other. If, therefore, the defendants had denied the allegation showing a want of authority, there would have been no difficulty. They did not deny it, but averred affirmatively the truth of the inconsistent