Opinion
Appeal form the Fourth Jndicial District.
COUNSEL:
To the point that the amendment to the answer should have been allowed, cited: Loucks v. Green, 99 Eng. Com. Law, 370; Lestrade v. Barth , 17 Cal. 285; Roland v. Humphrey , 18 Id. 455. 4 Duer, 228; 9 Cal. 56; and that the denials in the answer raised a material issue, cited: Walrad v. Bennett, 6 Barb. 144.
M. Compton, for Appellant.
Shafter, Heydenfeldt & Goold, for Respondents.
JUDGES: Crocker, J. delivered the opinion of the Court. Cope, C. J. concurring.
OPINION
CROCKER, Judge
This is an action to recover the sum of $ 1,724 86, upon an account for goods sold and delivered. The complaint is in the usual form, and is sworn to. The answer denies that at the time stated in the complaint, or at any other time, they were indebted to the plaintiff in the sum of $ 1,724 86, or any other sum for goods, wares, and merchandise, or otherwise, before that time, sold and delivered, except as hereinafter admitted, and they also deny any promise to pay. The answer then admits that they purchased goods of the plaintiff of the value of $ 1,512 42, and of Levinson & Brother of the value of two hundred and twelve dollars and forty-four cents, and that they are informed and believe that the plaintiff is not the sole owner of the claim, and is not entitled to recover without joining one Levinson with him; that plaintiff is not the real party in interest, but it is prosecuted for the benefit of Levinson & Brother. When the case was called for trial a jury was impaneled, and both parties submitted the case upon the pleadings. The defendants then asked leave to amend their answer, so as to aver that the goods were purchased " on credit," and that such " term of credit" had not expired. The Court refused to allow them to amend, to which they excepted. The Court instructed the jury that under the pleadings the plaintiff was entitled to a judgment for the sum claimed and interest, and a verdict and judgment were rendered accordingly, from which the defendants appeal.
The first assignment of error is that the Court ought to have permitted the defendants to amend their answer. It would have been of no benefit to the defendants if they had been permitted to amend in the manner they asked for. A general averment that the " term of credit" had not expired would have been insufficient, as it would be but a mere conclusion of law, unsupported by any fact averred. It would have been necessary to have averred the date of the sale of the goods, and the length of time for payment given, and from these specific facts the Court could have determined whether the time had expired or not. But no amendment of that kind was asked for. In pleadings, statements of mere conclusions of law are insufficient; the facts from which the conclusion is drawn must be stated. Courts should be liberal in granting leave to amend pleadings, but when the proposed amendment is immaterial, a refusal to grant leave to amend cannot be urged as error.
The second ground of error is, that the denial of indebtedness in the answer was insufficient to put the plaintiffs to their proof. The denials are clearly insufficient to raise any issue upon any material fact. A general denial of the averments of the complaint, with the qualification of " except as hereinafter admitted," is clearly insufficient where the pleadings are verified. The denial in that form was not a specific denial, as required by the statute, and the averments were therefore properly deemed admitted. The denial of the alleged promise to pay was immaterial. Having admitted the indebtedness charged in the complaint, the law implies therefrom a promise to pay, and the denial of any express promise raised no issue that required any proof on the part of the plaintiff. As to the averments that the plaintiff was not the owner or real party in interest, they are not well pleaded, and the burden of proof was on the defendants, and as no proof was offered by the defendants to sustain them, it is not necessary, therefore, to notice them.
The judgment is affirmed.