McFarland v. Holcomb
Before: Harrison
Synopsis
Assumpsit fob Services—Claim against Estate of Deceased Person— Sufficiency of Complaint—Demurrer.—A complaint in an action upon a claim against the estate of a deceased person, alleging as the basis of the claim that the decedent “was at the time of his death indebted to the plaintiff in the sum of seven thousand five hundred dollars as a balance due plaintiff for nursing, boarding, lodging, counseling, advising and taking care of the decedent almost continuously from the twenty-sixth day of September, 1870, down to the fourth day of November, 1895,” is neither subject to a general demurrer for want of facts nor to a special demurrer for uncertainty.
Id.—Services Received—Presumed Request—Implied Promise.—A complaint which shows that the plaintiff rendered services to the defendant which were received by him in person, and were presumptively at his request, and of which he has enjoyed the benefit, expresses a consideration from which a promise is implied in law to give compensation therefor, and states facts from which the liability of £he defendant is presumed, and is good as against a general demurrer, though not affirmatively alleging either the request or the promise.
Id.—Items of Claim—Special Demurrer—Bill of Particulars.—A complaint upon a single claim for services of different kinds alleged to have been rendered to a deceased person “almost continuously” between certain dates, sufficiently shows a single claim therefor, and is not a uniting of several causes of action for which separate compensation should be made, or subject to a special demurrer for uncertainty in not showing how much services of each kind were rendered. The items of the claim may be obtained by demanding a hill of particulars, under section 454 of the Code of Civil Procedure.
Id.—Times and Amounts of Services—Statute of Limitations.—The complaint is not demurrable for uncertainty or ambiguity because not stating the times at which the services were rendered, or when the items thereof accrued, or the amounts claimed for the several kinds of services, nor because it cannot he determined therefrom what part of the claim is barred by the statute of limitations.
Id.—Pleading of Statute of Limitations.—The statute of limitations is an affirmative defense, and must he specially pleaded by demurrer, if the bar of the statute appears upon the face of the complaint, or if otherwise, by answer.
Id.—Practice—Motion to Make Complaint Definite and Certain— Demurrer.—A motion to make a complaint more definite and certain, is not proper practice in this state, and it is error to grant such a motion. The only proper remedy under the Code is by demurrer on the ground that the complaint is ambiguous, unintelligible or uncertain, under section 430 of the Code of Civil Procedure.
HARRISON, J. The plaintiff brought this action to establish a claim against the estate of the defendants’ testator, which she had previously presented to them for allowance, and which they had rejected. In her complaint she alleges as the basis of her claim “that William A. Holcomb was at the time of his death indebted to the plaintiff in the sum of seven thousand five hundred dollars as a balance due to plaintiff for nursing, boarding, lodging, counseling, advising, and taking care of the said William A. Holcomh almost continuously from the twenty-ninth day of November, 1870, down to the fourth day of November, 1895, in [86]the city and county of San Francisco, State of California.” The; defendants demurred to the complaint upon the grounds of want of facts and uncertainty, and, their demurrer having been sustained, the plaintiff has appealed from the judgment entered! therein against her.
In support of their demurrer for want of facts to constitute a. cause of action, the respondents contend that, as the complaint, does not aver that the services of the plaintiff were rendered at. the request of their testator, it fails to state a cause of action against his estate.
Under the system of pleading at the common law, it was requisite that the declaration in an action of assumpsit upon an executed consideration should show that the consideration for the promise by the defendant was sufficient to support his promise, and it was sufficient to aver that the consideration was executed, at his request; but this averment was unnecessary when the consideration as well as the promise were implied from the nature of the transaction set forth in the declaration—as in an action for goods sold and delivered to the defendant, or for money loaned to him by the plaintiff. (Fisher v. Pyne, 1 Man. & G. 265, note.) Under our system of pleading, where only the facts which constitute the cause of action are to be alleged, it is not requisite to aver either the consideration or the promise, when they are implied as a legal conclusion from the facts which are alleged. While counsel and advice are frequently given without any request, and may be of no benefit to the party to whom they are given, yet a complaint which shows that the plaintiff rendered services to the defendant which were received by him in person, and were presumptively at his request, and of which he has enjoyed the benefit, states facts from which the liability of the defendant therefor is presumed, and is good as against a general demurrer. In the present case the nursing of the decedent by the plaintiff, and his acceptance from her of his board and lodging during the time specified, was a consideration sufficient to support the promise for compensation therefor which is implied in law, and to render him liable therefor.
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