Johnson v. Fletcher

STURTEVANT, J.

The plaintiff commenced an action to recover a judgment awarding her damages alleged to have been caused by certain fraudulent misrepresentations. The trial court sustained, without leave, to amend, a demurrer to the fourth complaint, that is the third amended complaint filed by the plaintiff; the plaintiff made no application to amend and twelve days later the trial court caused a judgment to be entered in favor of the defendants from which the plaintiff has appealed. If any attack stated in the demurrer was well founded, it follows that the trial court did not err in its ruling on the demurrer.

(Burke

v.

Maguire,

154 Cal. 456, 461 [98 Pac. 21].)

The complaint and the demurrer are very long. It will serve no useful purpose to recite the entire contents of either or both. Among the numerous attacks made by the demurrer there were included among others: “(I) That said fourth amended complaint does not state facts sufficient to constitute a cause of action against said defendants or either or any of them; (II) that said fourth amended complaint is uncertain in this: (a) that it cannot be ascertained therefrom . . . what if any damages plaintiff is alleged to have sustained ... (i) it cannot be ascertained therefrom at what time or times the alleged representations are alleged to have been made.” It was apparently the claim of the plaintiff that by reason of the fraudulent acts of the defendants she bought for $30,000

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the furniture contained in, and the leasehold interest in, an apartment house known as number 1007 Sutter Street, in San Francisco; that the furniture and the leasehold were valueless and that her damage was therefore $30,000, the amount which she had paid. To state her case her pleading “must of course show the fraudulent representations; that they were known by the defendant to be false or were made under circumstances not warranted by his knowledge; that they were actually false; that they were made with intent to deceive the plaintiff or with intent to induce him to enter into the transaction; that the plaintiff relied upon the representations believing them to be true; and that he was injured.” (12 Cal. Jur., p. 806.) Her pleading did not conform to these requirements and was subject to the attacks above quoted. As to some matters she failed to state sufficient facts; as to some other matters her statements are mere recitals and not positive allegations; and as to some other matters her statements are uncertain, ambiguous, and unintelligible. She alleges: “That this plaintiff was induced to purchase the said apartment house and was induced to pay the said moneys hereinbefore specified for the said apartment house, and the maintenance of said house by reason of the defendants, and each of them, having falsely, wilfully and untruthfully, and knowingly stated and represented to this plaintiff with the intent, purpose and object of wilfully cheating and defrauding plaintiff, and with the full knowledge of defendants that each and all of said statements were false and untrue, the following matters and things concerning the said apartment house and business therein conducted, which statements and representations are and were known to the defendants to be untrue, and, each of them is wholly untrue, and made with the intent to cheat and defraud plaintiff, the same being as follows:” The above allegation is a recital of facts and not a positive allegation. All matters of substance should be alleged positively and may not be stated in the form of recitals.