Edger v. Foster

California Court of Appeal Dec 19, 1941 No. Civ. No. 13313Published

Before: McComb

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Holding. The court held that a denial of a specific paragraph of a complaint is sufficient to raise a material issue, and that a defendant may plead inconsistent defenses without the affirmative defense constituting an admission of the complaint's allegations.

Issues

Do the words, 'Denies paragraph... of said complaint,' constitute a general denial of the allegations of the paragraph?
Does an admission in an affirmative defense that is inconsistent with a prior denial constitute an admission of the complaint's allegations?

Disposition. reversed

Quotations verified verbatim against the opinion

“the form of denial here in question constitutes a denial of all of the allegations of the paragraph so denied and, therefore, raised material issues”

“The rule is established in California that a defendant may plead inconsistent defenses.”

McCOMB, J. From a judgment in favor of plaintiff after the sustaining by the trial court of a demurrer to defendant C. C. Foster’s amended answer without leave to amend in an action for specific performance of a contract to sell real property or damages in lieu thereof, defendant C. C. Foster appeals.

The essential facts are as follows:

Among other paragraphs of plaintiff’s complaint, it alleged the following:

“V.

“That thereafter, the plaintiff herein and her said husband, John Albert Edger, made each and every payment of Fifteen Dollars ($15.00) or more, per month, commencing on the 6th day of July, 1932, and ending on. the 6th day of December, 1939, each of which payments were credited upon the back of said contract by the defendant, C. C. Foster.

“VI.

“That prior to the commencement of this action, the plaintiff herein demanded of the defendants, and each of them, delivery to the plaintiff of the property covered by said Agreement for the sale of real estate, and did tender an offer to pay to said defendants any balance due under and by virtue of the terms and conditions of said agreement for the sale of real estate.

“VII.

“That the said defendants, and each of them, have failed, neglected and refused, and still fail, neglect and refuse to deliver the said property to the plaintiff herein, and that the said defendants, and each of them, are unable to deliver the said property to the plaintiff herein, for the reason that the said defendants, and each of them, did prior hereto, and on the 8th day of August, 1933, deed the said property to [582]one Horace 0. Heaton, and that said Horace C. Heaton is now the holder and owner of said property.

“VIII.

“That the said property so agreed to be conveyed is worth a sum in excess of Two Thousand Dollars ($2,000.00), and that plaintiff has paid to the defendants, and each of them, under and by virtue of said agreement for the , sale of real estate the total sum of Sixteen Hundred Eighty-four Dollars ($1684.00).”

Defendant C. C. Poster’s amended answer contained, among other allegations, the following:

Edger v. Foster

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