Pike v. Zadig

SLOSS, J.

The court below sustained the demurrer of certain defendants to plaintiff’s first amended complaint, with leave to the plaintiff to amend said complaint within ten days “on'first paying said defendants twenty-five dollars as terms.” Plaintiff declining to comply with the condition, judgment was entered in favor of the defendants, and plaintiff appeals from such judgment.

Assuming that the complaint was open to the objections specified in the demurrer, there can, of course, be no doubt

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of the right of the court to impose reasonable terms as a condition of permitting the amended pleading to be filed. It is not suggested that the amount required to be paid was unduly large, and the only question, therefore, is whether the demurrer was properly sustained.

The complaint is anything but a model pleading. At the same time, we think that, clumsily drawn as it was, it was sufficient to withstand attack on the points specified in the demurrer presented here by the respondents. In the caption of the complaint the defendants named are: H. Zadig, Albert W. Wollberg, as individuals, John Doe, Richard Roe and Martin Chuzzlewit, doing business as copartners under the name of Zadig & Company, and Black Company, First Doe, Second Doe,. Third Doe, Fourth Doe, Fifth Doe, and John McCarthy. The pleading alleges, in paragraph I, that the true names of the defendants are unknown to plaintiff and that Black Company is a corporation organized under the laws of the state of California. It then proceeds as follows: “Within four years last past in the city and county of San Francisco, state of California, defendants became indebted to plaintiff upon and according to an open, mutual and current book account for money had and received by defendants for the use and benefit of plaintiff, in two sums and balances, to wit, in one open, mutual and current book account in a certain sum and balance, to wit, $5-0,000, and in another open, mutual and current book account, between the same parties, to wit, between plaintiff and defendants, in another certain sum and balance, to wit, the sum of $48,000.

“Thereafter and on or about February 15, 1912, plaintiff and defendants entered into an accord and satisfaction as to one of said sums, to wit, said sum of $50,000, and plaintiff credited said sum as being paid.