It is to be observed, from the facts admitted in this case: 1. That the fraud of Thompson, in getting possession of the plaintiffs' property by concealing his insolvency, and with a preconceived design of never paying plaintiffs for it, is nowhere denied. 2. That Harpending states that if there were any such fraud he was no party thereto. 3. That he admits present possession of all the goods, etc., mentioned in the complaint, and sets up ownership thereto.
Under the facts as shown by the pleadings, the plaintiffs insist that the ruling of the Court below, in granting the motion for judgment, was correct, for the following reason, to wit: A sale of goods on credit is absolutely null and void if thevendee, at the time of sale, was insolvent, and made the purchase with the preconceived intention of never paying for them. The principle of law above stated is the undoubted law of England. (Ferguson v. Carrington, 9 B. & C. 59; Load v. Green, 15 Mee. & W. 216.) The decisions of this Court sustain the doctrine. (Seligman v. Kalkman , 8 Cal. 207; Sargent v. Strum , 23 Cal. 359.)
The appellant assumes the ground that plaintiffs can take no advantage of any admissions in the answer, unless the separate plea purports to answer the entire complaint, and that " a pleading cannot be used as evidence in the case, and an admission in pleading is only to be regarded in connection with the particular defence in which it occurs; as to other defences, it has no effect." This is novel doctrine in our Courts, and when the pleadings are sworn to, unprecedented, we believe, everywhere else. A solemn admission in pleadings is the highest species of evidence; and this Court has gone so far as to hold that a sworn allegation made in one case may be used as evidence against the party making the admission in another and a different suit. (Shafter v. Richards , 14 Cal. 126; 1 Greenl. Ev., Sec. 527.)
The intimations thrown out by this Court, that in actions of law the record should not be incumbered with probative facts, cannot apply to a case like this. Besides, replevin, as used at common law, is unknown in this State. We have no distress for rent, and consequently no replevy by the tenant. Our statute abolishes distinctions between actions, and requires a statement of the facts in ordinary and concise language. This has been done, and nothing more. We stated just exactly the ultimate facts we would have been required to prove. (Halleck v. Mixer , 16 Cal. 574; Hunter v. Hudson, 20 Barb., S. C., 493.)
JUDGES: Shafter, J. Mr. Justice Rhodes expressed no opinion.
OPINION
SHAFTER, Judge
This action is for the claim and delivery of two quarter casks of brandy and twenty-five cases of champagne. The complaint is not drawn in the manner usually adopted in cases of replevin, but approximates a bill in equity with a double aspect. The different aspects, however, are so overlapped and jumbled that it is difficult to ascertain the real grounds of the plaintiffs' claim, or to forecast the possibilities of the controversy which they invite. It may be assumed, however, that the complaint charges, in substance, that the plaintiffs are the owners of the goods, and that they are entitled to possess them, and that they were wrongfully in the possession of the defendants, who, on demand made, refused to deliver them. The answer denies the plaintiffs' title and the wrongful withholding, and avers that the goods are the property of the defendants. There is a further and distinct answer, in the nature of a counter statement rather than of a confession and avoidance, which counter statement, in the judgment of the pleader, constituted a defence to the action. The plaintiffs moved for judgment on the pleadings; the motion was granted, and the appeal is from the judgment.
Nothing contained in the special defence, it is to be observed, was available to the plaintiffs on motion for judgment on the pleadings under the issues raised by the denials; nor would it have been otherwise had the entire cause of action been confessed in the special defence. We had occasion to consider that question in Siter v. Jewett , 33 Cal. 92, and we held that, " where there are several answers, an admission made in one is not available in proof of issues raised by the others." Whatever doubt may exist as to the true result of the pleadings in this case comes of the fact that the plaintiffs have presented their case in two parallel sets of allegations. In the first set the plaintiffs aver that the title to the goods and the right of possession are in them, and that the property is wrongfully detained by the defendants; in the second set, the particular grounds upon which the title and right of possession are claimed to be in the plaintiffs, and on which the detention of the goods is claimed to be unlawful, are set forth in detail. There can be no question, however, that the more general statement was sufficient for all the purposes of pleading, nor that a denial of it put the plaintiffs upon their proof as a prerequisite to judgment. The second or detailed statement was but the first in minute analysis. But facts are not to be, or at least need not be, separated entirely from the laws by the pleader; nor could they be without great and most damaging prolixity. In this, as well as in most things, theory and practice are compelled to meet each other half way for the sake of attainable good. The last analysis between fact and law is usually made by the Judge at the trial. The allegations of the second statement may be admitted to be issuable; but so are the larger allegations of the first, which comprehend them. The defendants were at liberty to reply to either set, but it was not necessary for them to reply to both, in order to shield themselves against a judgment on the pleadings.
The judgment must be reversed, and we deem it proper under the circumstances to award a new trial. But as a step preparatory to such new trial, it would be well for the plaintiffs to amend their complaint so that the questions to be controverted, whether of law or fact, may be presented with proper certainty and distinctness.
Judgment reversed and new trial ordered.