Stewart v. Douglass

SHAW, J.

The court below sustained a demurrer to the fourth amended complaint, denied the application of the plaintiff to file a fifth amended complaint and thereupon rendered judgment dismissing the action.

From

this judgment the plaintiff appeals.

It was not error for the court to refuse to allow further amendments to the complaint. When a demurrer is sustained to a complaint it is within the discretion of the court either to allow an amended complaint to be filed or to give judgment forthwith in favor of the defendant. The appellate court will in every such case sustain the action of the court below, whatever course it may take, unless it is made to appear by the record that there has been an abuse of discretion. The plaintiff merely asked leave to file an amended complaint, and, so far as the record discloses, did not show that there were any allegations of fact omitted from the complaint to which the demurrer had been sustained which, if inserted therein, would in any respect change its legal effect, nor make any statement whatever of the grounds or reasons for making the application for leave to amend. There was clearly no abuse of discretion shown.

(Kleinclaus

v.

Dutard,

147 Cal. 245, [81 Pac. 516, 518].) The right to amend after the filing of a demurrer is absolute only when it is exercised before the demurrer is argued and submitted to the court for decision. (Code Civ. Proc., sec. 472.)

The principal question in the case is the sufficiency of the facts stated in the fourth amended complaint to constitute a cause of action to enforce a resulting or constructive trust. The plaintiff, by his own exertions and explorations, discov

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ered upon vacant government land in the county of San Diego a valuable mine of certain mineral known as “lepidolite,” a variety of mica, and sent samples thereof to a glass-manufacturing company in New Jersey to be tested. The defendant Douglass was the secretary of said company, and, so far as appears, a stranger to the plaintiff. He immediately wrote to plaintiff, saying that he expected to be in California in the then ensuing month of February, 1898, asking plaintiff to be silent about the discovery until he (Douglass) could get to California, and stating that there might be something to their mutual advantage in said mineral deposits. In April, 1898, Douglass called on plaintiff in Los Angeles, and plaintiff then informed him of the discovery and of the nature and extent, but not the location, of said deposits. Douglass said that if the mineral proved valuable for glass manufacture his .company would build a glass plant in Los Angeles, but that “it would be better for plaintiff and Douglass if they would retain the ownership of the mines themselves and sell the mineral to the glass company.” The circumstances which it is claimed are sufficient to create the trust in favor of plaintiff are then alleged as follows: “That said defendant was informed at said time, that he (plaintiff) had a stone location on a part of said mineral property, being the property known as the ‘Mission’ claim, but plaintiff stated to said defendant that, if the claims were taken up as mining claims, that he (plaintiff) would be entitled to an undivided half-interest therein, and to this the defendant then agreed, and stated that he understood that, and that that was satisfactory to him. The plaintiff believed the statements and representations made to him by said defendant Douglass, and relied on said, statements and representations and had full confidence in said Douglass and his said representations, and in consequence of such reliance he (plaintiff), on April 6, 1898, told said defendant of, and went with him to, and showed to him, said defendant, said ledges or lodes of lepidolite mineral herein described, and it was then and there concluded, understood, and agreed by and between said defendant Douglass and plaintiff, in consideration of the premises, and in accordance therewith, and of the consent of plaintiff then given thereto, that said defendant Douglass would without unnecessary delay, locate, or cause to be located, both of said ledges or lodes of lepidolite