The opinion
By the Court:
The action is to enforce the collection of a street assessment, and the complaint sets out the assessment and avers that it became delinquent and remains unpaid. Amongst other defenses, the answer denies that the Superintendent of Streets ever made or issued any assessment for the work mentioned in said amended complaint, or any part thereof.” The only finding of facts appearing in the record, relates to the publication of the resolution of intention, and on this finding a judgment was entered for the defendant, from which the plaintiff appeals. "We have repeatedly held that when material facts within the issues are not expressly found, we will presume them to have been found in accordance with the judgment, unless it affirmatively appears that no other facts were proved than those included in the findings. Applying this rule to the present case, it will be presumed that the Court found that no assessment was in fact made by the Superintendent of Streets. But the plaintiff claims that, under the statute, only three defenses are permitted, viz : first, that the Board never acquired jurisdiction to order the work; second, payment of the assessment; *102 third, fraud in the assessment, etc. (Stats. 1869-70 p. 891); and it is therefore insisted that defendant is precluded from denying that the assessment was made and issued as averred in the complaint. Hence it is said that the issue tendered by the answer on this point was immaterial. But we do not think so. The fact that an assessment was made and issued was a material and necessary averment, without which the complaint would have stated no cause of action; and it was not intended to prohibit the defendant from denying material and necessary allegations of the complaint. The statute intended to restrict the affirmative defenses to those enumerated, but on no reasonable construction can be held to deny to a defendant the right to contravert the material averments of the complaint. (People v. Waterman, 31 Cal. 412 .)
Judgment and order affirmed.