Kraner v. Halsey

Thornton, J. Judgment passed for defendant herein, and plaintiff appealed therefrom.

The questions to be considered arise on a demurrer to the complaint.

The first ground of the demurrer, that the complaint does not state facts sufficient to constitute a cause of action, is manifestly untenable.

The complaint states the payment of a sum of money by plaintiff at the special instance and request of defendant, for which money so paid defendant is indebted to him, and that he (defendant) has failed and refused to pay this money, or any part of it. The law on, the facts stated implies a promise by defendant to pay the money to the person paying it at defendant’s request, and in such case it is unnecessary to aver the promise. That which is implied by law need not be averred. (Stephen’s Pleading, 353, 354; Gould’s Pleading, c. 3, sec. 8.)

The preceding statements are matters of inducement only.

The second ground of demurrer is, that the cause of action set forth in the complaint is barred by the provisions of section 337, and by subdivision 1 of section -339, and by section 343 of the Code of Civil Procedure of this state.

These sections are a part of the statute law of this state, limiting the period within which actions may be commenced.

[211]It does not appear on the face of the complaint when the money was paid by plaintiff at the request of defendant. To hold that the cause of action sued on is barred, on a demurrer to the complaint, it must so appear from the allegations of the complaint. Here it does not so appear. The date of the payment is not stated in the pleading. How, then, can any court say that the payment made at request of defendant was not made within sixty days or one day before the commencement of the action, or that the request of defendant, by reason of which the payment was made, was not made within ten days before action brought ? The demurrer must be determined on the allegations of the pleading before the court. A court is not allowed to speculate on what might have happened, or what might not have occurred, in view of the averments of the complaint. It must decide on the complaint and its averments. See Ord v. De la Guerra, 18 Cal. 75, where it was held that when a complaint shows prima facie upon the facts stated that the claim is barred by the statute of limitations, the defendant may take advantage of the defect by demurrer; yet it must clearly so appear. It is far from clearly appearing here. In fact it does not appear at all.