Burns v. Cushing

McFarland, J. — This is an action to recover a balance due for legal services alleged to have been rendered by Charles F. Hanlon, and assigned to plaintiff. Judgment went for plaintiff, and defendants appeal therefrom upon the judgment roll. The only point made is, that the court erred in overruling the demurrer to the comrplaint.

1. In the complaint it is averred that in May or June, 1884, defendants retained and employed said Hanlon to commence, prosecute, and defend certain actions and proceedings at law and in equity and probate, and that “ in pursuance of said retainer said Hanlon rendered valuable service to said defendants and each of them in and about the premises since May or June, 1884, up to the twenty-ninth" day of January, 1890.” Appellants assailed this averment by special demurrer, as ambiguous and uncertain; and in their briefs they argue that it is uncertain because no particular action or proceding is stated in which any of the alleged services were ren[671]dered, no time given at which any part of the services were rendered, no facts stated which would enable defendants to prepare a defense, etc. We think, however, that the averment comes within the provision of section 454 of the Code of Civil Procedure, and that appellants should have demanded a bill of particulars under that section of the code. (Tompkins v. Mahoney, 32 Cal. 231; Hart v. Spect, 62 Cal. 187.)

2. Appellants contend that the demurrer should have been sustained, because the complaint fails to aver nonpayment of the amount sued for. The averment on that subject is as follows: “ Plaintiff, upon his information and belief, alleges that said services were reasonably worth the sum of $750, and defendants have paid the sum of $200 on account, and in part payment thereof, leaving the sum of $550 unpaid thereof.” This form of averring non-payment would certainly not gratify the taste of an accomplished and experienced pleader. The present participle is not a part of speech particularly well adapted to carrying a predicate. But under our liberal system, which expressly provides that “ the court must, in every stage of an action, disregard any error or defect in the pleading .... which does not affect the substantial rights of the parties,” we think that the averment in question must be allowed to pass muster. And it must be considered as of the date of the filing of the complaint, although it appears that the cause of action was assigned to plaintiff on the day before the action was commenced.

Moreover, we think that if. the averment could be deemed defective for the reason above considered, the defect was supplied by the answer.