De La Guerra v. Newhall
Before: Morrison
Synopsis
Pleading—Assumpsit—Common Counts—Promise —Evidence—Variance— Immaterial Error.—The promise to pay, alleged in the common counts in assumpsit, was a mere conclusion of law from the facts stated; and, under the Code, in such cases, (as it is only required to state the facts) an express promise need not be alleged, and, if alleged, need not be proved. Accordingly—where the complaint alleged the pasturing of defendant’s cattle on the plaintiff’s land, and the value of the pasturage; and also alleged that the plaintiff expressly promised to pay what it was reasonably worth—held, that it was not necessary to prove an express promise; and held, further—there being no conflict in the evidence as to the pasturing of defendant’s cattle on the plaintiff’s land—that the admission of incompetent evidence as to an express promise could do no injury, and was, therefore, not ground for reversal.
Former Judgment—Estoppel.—A judgment for defendants, in an action for the trespassing of defendants’ cattle on the plaintiff’s land, held not to bo a bar to a subsequent action for similar trespasses, occurring prior to those alleged in the former action.
Morrison, C. J.: The complaint in this action contains two counts in indebitatus assumpsit, the first for pasturing 1,500 head of cattle from the 20th day of March to the 5th day of May, 1877, and the second for pasturing “ a large band of cattle ” from the 20th day of February to the 5th day of May, 1877. Trial before a jury, and verdict for plaintiff in the sum of $900. The case is brought before this Court on appeal from the judgment and from the order of the Court below, denying defendant’s motion for a new trial.
In both counts of the complaint, an express promise on the part of the defendants is alleged, but the evidence fails to establish an express promise, and this is the first point made on appeal. It is claimed on behalf of the appellants, that it was [23]incumbent on the plaintiff to prove an express promise, as such promise was averred in both counts of the complaint. Such was not the rule under the common-law forms of pleading, and is not the rule under the Code of Civil Procedure.
“Mo distinction exists in pleading between an implied promise and an express one ; it is true that in evidence the law in many' cases implies from certain facts that a promise has been made; but in pleading, the supposed promise itself should be alleged, and it is at least untechnical merely to state that which is only evidence of a promise.” (1 Chitty on Pleading, 309.)
In the case of Wilkins v. Stidger, 22 Cal. 236, the Court held that “ the promise to pay, alleged in the common counts in assumpsit, was a mere conclusion of law from the facts to be stated, and as the Code only requires the facts to be stated, they are sufficient without setting forth the conclusion of law arising from those facts ”; and in the later case of Abadie v. Carrillo, 32 Cal. 174, the same thing was held by the Court.
In the case now under consideration, the complaint contained all the averments necessary to the creation of a legal liability on the part of defendants. It avers ownership of the land in the plaintiff, ownership of the cattle by the defendants, the fact that they were pastured on plaintiff’s land during a stated period of time, and that such pasturage was worth the amount stated in the complaint. From these facts, if proved, the law creates an implied promise and a legal liability, although the defendants’ cattle were wrongfully on the plaintiff’s land. (Fratt v. Clark, 12 Cal. 89; Roberts v. Evans, 43 Cal. 381.)
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