FRISCH et al. v. CALER et al., 21 Cal. 71

Cope, J. delivered the opinion of the Court Norton, J. concurring. The proceedings in this case were had during the existence of the statute requiring a replication to new matter set up in the answer. The action is based in part upon a promissory note, and the question is, whether a plea of payment is new matter in the sense of the statute. Hew matter is that which admits the facts alleged as the grounds of relief, but avoids them by introducing a new subject of controversy, operating as a defense.

It is necessary in an action on a promissory note to allege that the note has not been paid; and the plea of payment does not admit the allegation of nonpayment, but raises an issue as to its truth.

" The form of the plea cannot make that new matter which is merely responsive to the complaint; and to hold that a replication is required would be to hold that the allegation of nonpayment is an immaterial allegation. “ A material allegation,” says the statute, “ is one essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient.” In an action for the breach of a contract, it is necessary to allege that the contract has been broken; and there is no difference in this respect between a promissory note and other contracts. (1 Chit.

Pl. 332.) The failure to pay constitutes the breach, and must be alleged; but so far as the proof is concerned, possession of the note is sufficient prima facie to sustain the allegation. (1 Van Sant. Pl. 226.) Being a material allegation, it is not new matter to aver affirmatively the existence of the fact thus negatived in the complaint; for, obviously, nothing new is brought into the controversy. 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.

A plea tendering no new issue, but controverting the original cause of action, is a mere traverse, and as nothing new is involved in it, to call it new matter would be a misapplication of terms. It is not essential to a traverse that it be expressed in negative words—the form of the plea depending upon the allegation it is intended to meet; a negative allegation requiring ah affirmative plea, and vice versa. Hew matter involves of necessity a new issue, or the introduction of a new ingredient as the basis of one, and a new issue can only arise upon a plea in confession and avoidance.

An averment that a debt has not been paid, followed by a plea of payment, makes up an issue upon the point, and a replication would only amount to a reiteration of the negative already expressed. An issue is made up when a proposition is affirmed on one side and denied on the other, and it is immaterial whether the denial precedes or follows the affirmation. Ho proposition admits of more than one affirmar tive and one negative, and the order in which they are to be presented depends upon the nature of the proposition.

Where a negative allegation is necessary in stating the cause of action, it must, of course, precede an averment of the fact negatived, but its position upon the record does not render it inoperative or useless. It constitutes the basis of the issue joined by the subsequent averment, and the latter operates as a traverse, and not as an averment of new matter. This disposes of the only question raised in the case; but it is proper to suggest an objection to the complaint, which, though apparently technical, is of the essence of good pleading.

The fact of nonpayment is not directly alleged—the allegation being that there is now due, etc., which is a mere conclusion of law, and would not have stood the test of a demurrer. For the purposes of this appeal Aye have treated it as sufficient, and our object in alluding to. it is to call attention to the matter and prevent the commission of similar errors in future. Judgment affirmed.