Widmer

Defendant demurred to the complaint, and his demurrer was overruled. He then duly served and filed a verified answer, whereupon plaintiff moved for judgment upon the pleadings, and judgment was accordingly given for plaintiff upon the pleadings alone. From this judgment defendant appeals.

The practice of moving for judgment upon the pleadings in proper cases has been sanctioned by this court; but we think that in the case at bar the answer contained denials of material averments of the complaint, waiving the question of the sufficiency of the complaint itself.

The action is to compel defendant to return to plaintiff the $484, which constituted the first payment made by plaintiff to defendant on the following contract:—

The complaint contains a number of averments about what plaintiff did in performing his part of said contract, which are denied in the answer, and which are now claimed by plaintiff to have been immaterial; but *90 waiving the questions thus presented, it is clear that there is a denial of matter in the complaint that is material. It is apparent that the “ defective title ” mentioned in the contract did. not refer to any title which defendant had, or professed to…