Bliss v. Sneath
Before: Haven, Temple
Synopsis
Landlord and Tenant—Action for Rent—Pleading—Demand and Nonpayment—Demurrer—Waiver of Objection.—An objection to a complaint for rent alleged to be due upon an indenture of lease, upon the ground that the complaint does not sufficiently aver demand and nonpayment, is waived by failure to demur especially thereto, and cannot be urged upon general demurrer.
Id.—Action by Agent in His Own Name—Defenses.—Where an agent sues in his own name, the defendant may avail himself of all defenses which would be good as against either the principal or agent.
Id.—Defense of Setoff—Liability of Coterminous Owner for Division Pence—Implied Contract.—The liability of one coterminous owner to the other, under section 841 of the Civil Code, for one-half the value of a division fence built by the latter, which the former uses as a part of his inclosure, is not a statutory liability, but is rather a liability upon an implied contract, and may properly be set up as a defense by way of setoff to an action on behalf of the former, for rent due from the latter.
Opinion — Temple
Temple, C. This is an appeal from a judgment for plaintiff upon the pleadings.
The action is for rent alleged to be due upon an in[44]denture of lease. It is contended that the complaint does not sufficiently aver demand and nonpayment. The allegation is: “That the plaintiff has demanded the payment of said sum, but to pay the same, or any part thereof, the defendant refused, and still refuses.” A general demurrer was interposed, which apparently was never passed upon, but was waived by answering. The objection not having been taken by special demurrer, the pleading must now be held sufficient. (Grant v. Scheerin, 84 Cal. 197.)
The defendant answered, admitting the demand of plaintiff, but setting up, as a partial defense, a claim against plaintiff’s wife.
The answer avers that in all the transactions set forth in the complaint, plaintiff acted solely and wholly as the agent of Martha S. Bliss, his wife; that the present action is prosecuted by him as agent of said Martha S. Bliss, and for her sole and exclusive use, benefit, and behalf. The answer then proceeds to aver a demand against said Martha S. Bliss, which existed at the time the action was commenced, and asks that such demand be set off against, and deducted from, the claim of plaintiff, and admits plaintiff’s right to take judgment for the excess of plaintiff’s demand over and above his claim against Martha S. Bliss. On motion, plaintiff obtained judgment for the full amount of his demand without trial.
The sufficiency of the allegations in the answer must be tested by the same rule applied to the complaint. If the allegations in the answer would be sufficient in a complaint to sustain a judgment, they are sufficient here. Judged by this rule, the allegation is sufficient to show that plaintiff is suing merely as the agent of his wife. The defense is not really a counterclaim. That is a demand which may be the basis of a judgment against the plaintiff.
Here the matter pleaded is purely defensive to the demand sued on.
“Where the agent sues in his own name,” says Mr. [45]
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