In re the Estate of Garcelon

1. Notwithstanding the genuineness and due execution of the compromise agreement, as contained in the several instruments set out in the answers, were admitted by the failure of petitioner to file an affidavit denying the same (Code Civ. Proc., sec. ■448), he still insists that the court erred in dismissing the petition without giving him an opportunity to show that such agreement was, in fact, without consideration, or that his consent thereto was obtained by fraud, or that it had been extinguished by rescission, or that performance thereof had been waived by the deceased. It is true that, by the terms of section 462 of the Code of Civil Procedure, new matter in-an answer is deemed to be controverted without any special replication, and under that section a plaintiff has the right, while not denying the genuineness and due execution of an instrument set out in an answer, to show other matters in confession or avoidance thereof. But unless he brings to the attention of the trial court his purpose to .offer such evidence, that court cannot assume that he desires *582 to make any such, defense, and in this case the motion of defendants for a dismissal of the petition was not opposed…