The rule under consideration is not given in the Code, but is implied by the requirement that the complaint or petition shall contain a statement of the facts which constitute the cause of action. The evidence does not constitute the cause of action-only the facts which are made to appear by the evidence, and these facts may be shown by one class of evidential facts or by another. The pleader may sometimes be enabled to decide whether a fact is evidential merely, or an issuable fact to be pleaded, by inquiring whether a denial of such fact would make a material issue-whether, if the denial be sustained, the defendant may not still be liable. In common-law actions a sensible pleader will seldom have difficulty, but, in the pursuit of equitable remedies, the plaintiff's right may depend upon such a number and complication of facts as sometimes to make it difficult to distinguish between those that are evidential and those that constitute the cause of action; still, in both cases, the rule is the same.2 212 the carriage for the horse, and offered to exchange even; but the plaintiff refused, asking $10 boot. The next day, however, he sent his carriage to Jones by his son, sending word that he would exchange according to the offer. Jones kept the carriage and sent the horse to the plaintiff, who kept him until taken from his possession by defendant. Third, or ultimate, fact: The horse is the property of the plaintiff. This is none the less a fact because it is a conclusion from the other facts and from the proposition of law. 212 It is because of this difficulty that Selden, J., in Wooden v. Waffle, 6 How. Pr. 145, and Rochester City Bank v. Suydam, 5 How. Pr. 218, seems to suppose that a different rule still prevails in legal and in equitable actions. To warrant this conclusion, he assumes that the code system is not complete in itself, but the old rules not inconsistent with it are still in force. The true view is that many of the old rules are necessarily implied from the very comprehensive ones laid down in the Code, as is the one given in the text. The statute is express in abolishing the distinction between actions at law and suits in equity, and, when not express, the abolition is clearly implied from the provision that there shall be but one form of action. Because, in some equitable actions, in order to show a liability, it becomes necessary to state a greater number of facts than in a money demand, it does not follow that they are mere evidential facts, as we use the term. There is, sometimes. a difficulty in distinguishing between the ultimate fact to be pleaded and a conclusion of law, and they are liable to be confounded; but there is a difference. As to the statement in ordinary actions, Marvin, J., in People v. Ryder, 12 N. Y. 433, after quoting Chitty and other authorities in regard to § 207. Illustrations. Thus, a controversy arises in regard to the delivery of a deed of conveyance, the instrument not having passed directly from the hand of the grantor to that of the grantee; the fact of delivery may be a conclusion from other facts bearing upon it, and the delivery itself may be but a probative fact, going to the fact of conveyance, or to the existence of the deed, which is nothing without delivery. The allegation may be that on, etc., by a certain indenture, or a certain deed poll, etc., he conveyed, etc. Or, by a certain indenture, etc., he covenanted, etc. The defendant may deny the deed-not intending to deny the signing and sealing of the paper, only its delivery. The facts tending to establish the delivery and the delivery itself, are but probative facts, going to the legal existence of the instrument.213 Or, one sues for the conversion of a horse; the facts to be established are title, conversion, and value; each of these facts may be a conclusion from many others, yet they alone are to be pleaded, the latter being but evidence. So, in trespass de bonis, the facts are the plaintiff's title (either possessory or as owner), the dispossession, conversion, and damage. Statements pertaining to the manner of the seizure and the cir cumstances attending it, or as to what was done with the property, would be pleading evidence, and they will be stricken out "as irrelevant and redundant;" 214 or, if not stricken out, the defendant is not bound to answer them.215 In suing upon a promissory note executed by an agent or partner, the pleading should charge that pleading evidence, says: "I have supposed it safe, and a compliance with the Code, to state the facts constituting the cause of action substantially in the same manner as they were stated in the old system-in a special count. By that system the legal issuable facts were to be stated, and the evidence by which those facts were to be established was to be brought forward on the trial. This position will not embrace what was known as the common counts." 213 See Sawyer v. Warner, 15 Barb. 282. 214 Green v. Palmer, 15 Cal. 411. They are rather redundant than irrele vant. As to striking out, see Buzzard v. Knapp, 12 How. Pr. 504; Eddy v. Beach, 7 Abb. Pr. 17; Radde v. Ruckgaber, 3 Duer, 684. 215 Racouillat v. Rene, 32 Cal. 450. it was executed by defendant,218 for such is the legal effect of the act-the manner of the execution is evidence; and so, in a sale and delivery to the defendants, where they purchased by an agent."1 Also, in an action for enticing a wife, the plaintiff alleges that the defendant procured, persuaded and enticed, without stating what he said to that end; 218 and in an action by a railroad passenger, in pleading the contract to carry, etc., he should state, in general terms, that the defendant contracted, etc., and the consideration, and not that the company or its agent sold the plaintiff a passenger ticket, etc.-for that is but evidence of the contract. In relying upon irregularities in a tax sale, the pleader should not say that he has searched the records in the proper offices, and can find no evidence of proper proceedings required, but that such proceedings were not had.219 In most of the states, and in all that have adopted the new procedure, the fictitious action of ejectment has been abolished, although the statutory action is sometimes as loose as the old. When not colored by the fictitious action, the plaintiff must show his title —that is, he must state the facts upon which he bases his right to possession. In such case (and this statement is required in some of the states) 220 he should state, generally, the nature of his title -as, that he is the owner in fee simple, of a term, so stating it as to show that it has not expired, or that he has an estate for life, as the case may be. It may be that he claims by conveyance from one who took by inheritance, whose ancestor purchased at a sale, upon execution, against one who might have been a remote grantee from the common source of title. Each link in the chain may be very important as evidence, but its statement would be out of place in a pleading.221 216 See v. Cox, 16 Mo. 166; Weide v. Porter, 22 Minn. 429; Sander v. Anderson, 21 Mo. 402. Contra, St. John v. Griffith, 1 Abb. Pr. 39. 217 Sherman v. New York Cent. R. Co., 22 Barb. 239. 218 1 Chit. Pl. (Ed. 1867) 391. 219 Rogers v. City of Milwaukee, 13 Wis. 610. 220 See post, as to pleading title, §§ 222–226. 221 For instances where the pleading of evidence is condemned, see Page v. Boyd, 11 How. Pr. 415; Allen v. Patterson, 7 N. Y. 476. (326) § 208. Difficulties in applying the Rule. The rule now under consideration, especially in connection with the one against pleading legal conclusions, will sometimes embarrass the pleader. It is not always easy to distinguish the issuable fact to be pleaded. In the cases which have been supposed, the fact alleged is, in a sense, a conclusion of law from the evidence; the legal effect of that evidence is matter of law. Mr. Van Santvoord, in his work upon the New York Code (pages 244, 245) thus quotes Mr. Selden, of that state: 222 "Facts are to be stated; but what are facts? Are they pure matter of fact unmixed with any element of law? No declaration or complaint was ever so drawn. If a plaintiff states his title to, or ownership of, property in the usual form, is this the statement of pure facts? Clearly, not. It comes much nearer being a statement of a mere matter of lawthat is of a legal right depending upon facts not stated. Again: the common averment that the defendant executed, or entered into, a contract is liable to the same criticism; or even that he signed, sealed, and delivered it. The delivery may have been actual, or it may have been constructive merely. What amounts to a deliv ery is a question of law. It is obvious, therefore, that some latitude of interpretation is to be given to the term 'facts,' when used in a rule of pleading. It must of necessity embrace a class of mixed facts, in which more or less of legal inference is admitted. A contrary construction would tend to intolerable prolixity. To determine precisely how great an infusion of law will be allowed to enter into the composition of a pleadable fact, precedent and analogy are our only guides." The foregoing statement is substantially correct, and to say that the ultimate, the issuable fact to be stated, is a conclusion of fact and not of law, does not fully distinguish it from legal conclusions. Many mere inferences condemned as conclusions of law, are inferences of fact. One sues as the assignee of a chose in ac 222 In Dows v. Hotchkiss, 10 N. Y. Leg. Obs. 281. tion; it is not good pleading to say that it is, or has become the property of the plaintiff; the fact that makes it his property should be stated. Still the plaintiff's property in the thing is as much a fact as though it were an ordinary chattel. But because both are conclusions, whether we call them logical or legal, it does not follow that they are the same. If the inference is matter of law, it cannot be stated for the reason that law is never pleaded; but if it be an inference of fact there is more room for doubt. There is, however, a difference between the issuable, the ultimate, fact to be pleaded, which difference may not be shown by definitions, but will be seen in examining cases. We may not be able to so describe the resembling features of two persons, that a stranger will distinguish them, yet they may be easily seen not to be the same. RULE VI. Conclusions of Law should not be pleaded.223 § 210. To be distinguished from issuable Facts. The rule is given in this connection, to show as far as we can, the difference between an admissible conclusion of fact and a conclusion of law. The facts which are but the logical conclusion from other facts must, as we have seen, be stated; the facts from which they are inferred are but evidence; but a conclusion of law, although of a fact, is not allowed. We may not be able to so formulate a definition or statement that shall describe what is meant by such a conclusion as to distinguish it from an issuable fact; yet, in inspecting a pleading, it is seldom difficult to make the distinction. 223 [Gerrity v. Brady, 44 Ill. App. 203; Maness v. Henry (Ala.) 11 South. 410. A statement that the plaintiff was in the act of getting on the car “as a passenger, as he had a right to do," is a conclusion of law. North Birmingham St. Ry. Co. v. Liddicoat (Ala.) 13 South. 18; Swanholm v. Reeser, 31 Pac. 804, 2 Idaho, 1167; Baker-Boyer Nat. Bank v. Hughson, 5 Wash. 100, 31 Pac. 423. Where, in an action to recover the purchase money of goods sold and delivered, the answer denies that defendants are indebted on the alleged cause of action set forth in the complaint, but does not otherwise deny the complaint, the answer is but a conclusion of law, and the defendants' promise to pay is admitted. Lamb v. Hirschberg (Com. Pl. N. Y.) 20 N. Y. Supp. 678. See, further, Dixon Co. v. Field, 111 U. S. 83, 4 Sup. Ct. 315.] |