William Hardy, Plaintiff and Respondent v. Admiral Oil Company, a California Corporation, Defendant Anddn Civ. 24701

• Decision Date: 19 April 1961
• Citation: 12 Cal.Rptr. 594
• Court: California Court of Appeals Court of Appeals
• Parties: William HARDY, Plaintiff and Respondent, v. ADMIRAL OIL COMPANY, a California corporation, Defendant and Appellant. Civ. 24701.

Page 594

12 Cal.Rptr. 594

William HARDY, Plaintiff and Respondent, v. ADMIRAL OIL COMPANY, a California corporation, Defendant and Appellant.

Civ. 24701.

District Court of Appeal, Second District, Division 3, California.

April 19, 1961.

Rehearing Granted May 18, 1961.

For Opinion on Rehearing see 14 Cal.Rptr. 89.

Opinion vacated 16 Cal.Rptr. 894, 366 P.2d 310.

Theodore G. Lee, Long Beach, for appellant.

Mitchell, Silberberg & Knupp and Howard S. Smith, Los Angeles, for respondent.

BISHOP, Justice pro tem.

Following the making of an order granting plaintiff's motion for a judgment on the pleadings, a judgment was entered that the plaintiff recover $25,000 from the defendant. Upon defendant's appeal we are reversing the judgment, because an allegation essential to plaintiff's entire case was effectively denied.

Plaintiff lays claim to no cause of action at all against the defendant except as one came to him by assignment from four individuals who had advanced $25,000 to the defendant and insisted that the defendant was under obligation to return that sum. Paragraph X of the complaint reads: 'On the 31st day of December, 1958, the said Purchasers, for a valuable consideration, assigned to the plaintiff by an instrument in writing all of their right, title and interest in and to the claim or cause of action against the defendant, Admiral Oil Company, and its officers and directors, for the return of the said sum of $25,000.00.'

In each of its four verified answers the defendant denied the allegations respecting the assignment, in these words:

'V.

'Answering Paragraphs VII, VIII and X of Pages 6 and 7 of plaintiff's Complaint, defendant denies both generally and specifically each and every allegation contained therein, and each and every part and parcel thereof, either as alleged, or otherwise, or at all, except as follows:

'Defendant admits * * *:

'That plaintiff's assignors mailed a letter, dated October 30, 1958, demanding the $25,000.00 be returned.'

Since the 1927 amendment to section 437 of the Code of Civil Procedure, that section has provided that 'The denials of the allegations controverted may be stated by reference to specific paragraphs or parts of the complaint; or by express admission of certain allegations of the complaint with a general denial of all of the allegations not so admitted;' Defendant's answers admitted one allegation of the three paragraphs of the complaint and denied both specifically and generally all other allegations in those paragraphs. As now authorized by the legislature the denials of the assignment as made by the defendant are sufficient to raise an issue. Del Fanta v. Sherman, 1930, 107 Cal.App. 746, 748-749, 290 P. 1087, 1088; Reinert v. Proud, 1935, 8 Cal.App.2d 169, 170, 47 P.2d 491, 493; Ukhtomski v. Tioga Mutual Water Co., 1936, 12 Cal.App.2d 726, 729-730, 55 P.2d 1251, 1252; Edger v. Foster, 1941, 48 Cal.App.2d 580, 582-583, 120 P.2d 134, 135; Hoelzle v. Fresno County, serve any useful purpose but neither do they P.2d 74, 77. We fail to see that the words 'either as alleged, or otherwise or at all,' serve any sueful purpose but neither do they impair the effectiveness of the denial. A material issue was raised; the motion for a judgment on the pleadings should not have been granted. MacIsaac v. Pozzo, 1945, 26 Cal.2d 809, 812-813, 161 P.2d 449, 451...