(See 3 Witkin, Cal. Procedure, Pleading, §§ 894-895, pp. 2488-2490.) Plaintiff has placed particular reliance upon the case of Jetty v. Craco, 123 Cal.App.2d 876 [ 267 P.2d 1055], which plaintiff claims supports his contention that defendant's general denial did not raise the issue of fraud. Plaintiff is mistaken.
He can do this by any legal proof, and he is not bound to set out his proofs in his pleading." [Pp. 641-642.] (Followed in Jetty v. Craco, 123 Cal.App.2d 876, 880 [ 267 P.2d 1055]; see also Peters v. Papoulacos, 218 Cal.App.2d 791 [ 32 Cal.Rptr. 689].) A very illuminating discussion of this subject by the great judge Benjamin Cardozo is to be found in McClelland v. Climax Hosiery Mills, 252 N.Y. 347 [ 169 N.E. 605].
Under his denial of the plaintiff's allegations of such a transaction, the defendant could offer proof that he did not borrow the money. (See Jetty v. Craco, 123 Cal.App.2d 876, 879 [ 267 P.2d 1055]; 58 C.J.S., Money Lent, § 6, p. 881.) The defendant's testimony was that the plaintiff sent him a check for $5,200 which he deposited in his New York bank account.
He could not be expected to meet special defenses which are not pleaded and has a right to be protected against them." (Jetty v. Craco (1954) 123 Cal.App.2d 876, 880.) "Just as the defendant is entitled to proceed with the knowledge that causes of action will not be asserted at trial that do not appear in the complaint, the plaintiff is entitled to assume that affirmative defenses omitted from the answer will not be asserted."
However, Reuter's argument fails because an affirmative defense is only required for "new matter" outside of the complaint. (Jetty v. Craco (1954) 123 Cal.App.2d 876, 880.) Agency was not new matter.