Pleasant v. Samuels

The Court. This action was commenced June 3, 1895, and the complaint contains two counts or causes of action, separately stated.

The first count alleges that defendant is indebted to the plaintiff in the sum of thirty-two thousand three hundred and sixty-four dollars and six cents on account of moneys heretofore, at the special instance and request of defendant, paid, laid out, expended, loaned, and advanced to and for the defendant by the plaintiff, and that the defendant had not paid to plaintiff any part or portion of said sum.

The second count alleges that plaintiff executed to defendant, at his special instance and request, and for his accommodation, without any consideration therefor, thirty-two promissory notes, the date, amount, and maturity of each of said notes being stated. The first note became due and payable on May 17, 1885, and the last on September 7, 1888, and the aggregate amount of [37]principal due on all the notes was thirty-two thousand three hundred and sixty-four dollars and six cents.

It is further alleged that “ after the execution by the plaintiff to the defendant of the said notes hereinbefore referred to, and before the maturity thereof, the defendant indorsed each one of them, and, as so indorsed, delivered the same to other parties, who, as plaintiff is informed and verily believes, acquired title thereto in good faith, for value and without notice. Subsequently, the plaintiff took up each of said notes and paid the amount of principal and interest thereon to the holder thereof”; and that defendant had not paid to plaintiff any part of the money so paid by her on said notes.

The defendant demurred to the first cause of action set up upon the ground that it did not state facts sufficient to constitute a cause of action, and upon the further ground that it was ambiguous, unintelligible, and uncertain in certain respects named; and to the second cause of action upon the ground that it is barred by subdivision 1 of section 339, and by section 337, of the Code of Civil Procedure.

The court below sustained the demurrer, and, the plaintiff declining to amend, judgment was entered that she take nothing by her action.

From that judgment this appeal is prosecuted.

1. The objection that the common counts are inconsistent with the provision of the "code that a complaint must state the facts constituting the cause of action in ordinary and concise language, and are therefore insufficient, is not tenable. It was held in this state at an early day, and has since been repeatedly held, that the common counts may be used to state a cause of action, notwithstanding the provision referred to, which was found in the old statutes and was adopted into the code. (Freeborn v. Glazer, 10 Cal. 337; Abadie v. Carrillo, 32 Cal. 171; Farwell v. Murray, 104 Cal. 464.)