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Burns v. Cushing

Supreme Court of California
Dec 9, 1892
96 Cal. 669 (Cal. 1892)


         Department Two

         Appeal from a judgment of the Superior Court of the city and county of San Francisco.


         The complaint was fatally defective in not averring non-payment. (Barney v. Vigoreaux , 92 Cal. 631; Notman v. Green , 90 Cal. 172; Scroufe v. Clay , 71 Cal. 123; Frisch v. Caler , 21 Cal. 71; Richards v. Travelers Ins. Co ., 80 Cal. 506; Roberts v. Treadwell , 50 Cal. 520; Grant v. Sheerin , 84 Cal. 197.) A pleading must be most strongly construed against the pleader, and any reasonable doubt or ambiguity arising on the face of the pleading is to be resolved most strongly against him. (Collins v. Townsend , 58 Cal. 608; Rogers v. Shannon , 52 Cal. 107; Triscony v. Orr , 49 Cal. 617; Salisbury v. Shirley , 53 Cal. 465; People v. Wong Wang , 92 Cal. 281; Potter v. Fowzer , 78 Cal. 496.) The defendants could not demand a bill of particulars, as the action was not on an account. (Code Civ. Proc., sec. 454.)

          Otto tum Suden, and Horace W. Philbrook, for Appellants.

          Crittenden Thornton, and F. H. Merzbach, for Respondent.

         The defendants should have demanded a bill of particulars, if they deemed the complaint uncertain. (Tompkins v. Mahoney , 32 Cal. 231; Hart v. Spect , 62 Cal. 187.) Even if the averment of non-payment was insufficient, the defect was cured by the answer. (Gould's Pleading, 166; 1 Chitty's Pleading, 16th Am. ed., 705; Hawthorne v. Smith, 3 Nev. 193; United States v. Morris, 10 Wheat. 287; Whittemore v. Ware , 101 Mass. 355; Vinal v. Richardson, 13 Allen, 521.)

         JUDGES: McFarland, J. De Haven, J., and Sharpstein, J., concurred.


          McFARLAND, Judge

         This is an action to recover a balance due for legal services alleged to have been rendered by Charles F. [31 P. 1125] Hanlon, and assigned to plaintiff. Judgment went for plaintiff, and defendants appeal therefrom upon the judgment roll. The only point made is, that the court erred in overruling the demurrer to the complaint.

         1. In the complaint it is averred that in May or June, 1884, defendants retained and employed said Hanlon to commence, prosecute, and defend certain actions and proceedings at law and in equity and probate, and that "in pursuance of said retainer said Hanlon rendered valuable service to said defendants and each of them in and about the premises since May or June, 1884, up to the twenty-ninth day of January, 1890." Appellants assailed this averment by special demurrer, as ambiguous and uncertain; and in their briefs they argue that it is uncertain because no particular action or proceeding is stated in which any of the alleged services were rendered, no time given at which any part of the services were rendered, no facts stated which would enable defendants to prepare a defense, etc. We think, however, that the averment comes within the provision of section 454 of the Code of Civil Procedure, and that appellants should have demanded a bill of particulars under that section of the code. (Tompkins v. Mahoney , 32 Cal. 231; Hart v. Spect , 62 Cal. 187.)

         2. Appellants contend that the demurrer should have been sustained, because the complaint fails to aver non-payment of the amount sued for. The averment on that subject is as follows: "Plaintiff, upon his information and belief, alleges that said services were reasonably worth the sum of $ 750, and defendants have paid the sum of $ 200 on account, and in part payment thereof, leaving the sum of $ 550 unpaid thereof." This form of averring non-payment would certainly not gratify the taste of an accomplished and experienced pleader. The present participle is not a part of speech particularly well adapted to carrying a predicate. But under our liberal system, which expressly provides that "the court must, in every stage of an action, disregard any error or defect in the pleading. .. . which does not affect the substantial rights of the parties," we think that the averment in question must be allowed to pass muster. And it must be considered as of the date of the filing of the complaint, although it appears that the cause of action was assigned to plaintiff on the day before the action was commenced.

         Moreover, we think that if the averment could be deemed defective for the reason above considered, the defect was supplied by the answer.

         The judgment is affirmed.

Summaries of

Burns v. Cushing

Supreme Court of California
Dec 9, 1892
96 Cal. 669 (Cal. 1892)
Case details for

Burns v. Cushing

Case Details

Full title:J. T. BURNS, Respondent, v. ELLEN CUSHING et al., Appellants

Court:Supreme Court of California

Date published: Dec 9, 1892


96 Cal. 669 (Cal. 1892)
31 P. 1124

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