an allegation of a fact is merely defective it may be cured by a default or verdict.19

It may be laid down as a general rule that the complaint must contain all the facts which upon a general denial the plaintiff will be called upon to prove in the first instance to protect himself from a nonsuit, and show himself entitled to a judgment.20 And this statement must be made in ordinary and concise language and without unnecessary repetition.21 The code provisions in this respect are only declaratory of the common law, and are applicable to all pleadings whether in law or equity.22

Under the rule just stated, it is evident that a complaint is materially defective if, to lay the foundation for a recovery. the proof must go further than the allegations contained in the pleadings. It must be so framed as to raise upon its face the question whether, admitting the facts stated to be true, the plaintiff is entitled to judgment, instead of leaving that question to be raised or determined upon the trial.23 For where a complaint shows no legal cause of action upon its face, a judgment by default can no more be taken than it can over a general demurrer.24

If a complaint fails to state facts sufficient to constitute a cause of action, advantage may be taken of the defect by demurrer, by motion for judgment on the pleadings, or upon motion for a new trial.25

Another important rule in connection with the statement of the cause of action is that where the complaint proceeds upon a certain theory the plaintiff cannot recover upon any other theory. A party is bound by his theory of the cause and its

19 Russell v. Mixer, 42 Cal. 475; Mercier v. Lewis, 39 Cal. 535.

20 1 Van Santv. Pl. 215; Green v. Palmer, 15 Cal. 414, 76 Am. Dec. 492; Northern Ry. v. Jordan, 87 Cal. 23, 25 Pac. 273.

21 Oregon B. & C. Codes, § 67; N. Y. Code Civ. Proc., § 142. And see Cal. Code Civ. Proc., § 426.

22 Godwin v. Stebbins, 2 Cal. 103; Piercy v. Sabin, 10 Cal. 27, 70 Am. Dec. 692; Cordier v. Schloss, 12 Cal. 147; Goodwin v. Hammond, 13 Cal. 169, 73 Am. Dec. 574; Riddle v.

Baker, 13 Cal. 302; Payne v. Treadwell, 16 Cal. 243.

23 1 Van Santv. Pl. 216; Buena Vista etc. Co. v. Tuohy, 107 Cal. 243 40 Pac. 386.

24 Abbe v. Marr, 14 Cal. 211; Ter ritory v. Virginia Road Co., 2 Mont 101; Selz, Schwab & Co. v. Tucker, 10 Utah, 135, 37 Pac. 249.

25 Kelley v. Kreiss, 68 Cal. 210, 9 Pac. 129.

26 Green v. Groves, 109 Ind. 519, 10 N. E. 401.

28

logical sequence.27 For example, a plaintiff cannot sue a railroad company as an employee and recover as a passenger." Nor can a plaintiff suing for goods sold and delivered recover a balance due where the proof shows that the goods were shipped on consignment."

27 State v. Schnitger, 16 Wyo. 479, 95 Pac. 698.

28 Evansville etc. Co. v. Barnes, 137 Ind. 306, 36 N. E. 1092.

20 Newell v. Nicholson, 17 Mont. 389, 43 Pac. 180.

CHAPTER XV.

COMPLAINT-JOINDER OF CAUSES.

189. Provisions of the codes as to joinder.-Without exception, the codes provide that a plaintiff may unite certain causes of action in the same complaint. The California statute, from which those of other states differ only in matters of detail, provides that two or more causes of action may be joined in a complaint, where they all arise out of1. Contracts, express or implied; 2. Claims to recover specific real property, with or without damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same; 3. Claims to recover specific personal property, with or without damages for the withholding thereof; 4. Claims against a trustee by virtue of a contract, or by operation of law; 5. Injuries to character; 6. Injuries to person; 7. Injuries to property; 8. Claims arising out of the same transaction, or transactions connected with the same subject of action, and not included within one of the foregoing subdivisions of this section. The causes of action so united must belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated; but an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person.1 The Ohio code section 80 (5019) permits the joinder of causes of action for injuries, with or without force, to person and property, or either. The Wisconsin code section 31 is the same as the Ohio code. The Iowa code section 2630 is as follows: "Causes of action of whatever kind, where each may be prosecuted by the same kind of proceedings, provided that they be by the same party, and against the same party in the same rights, and if suit on all may be brought and tried in that county, may be joined in the same petition; but the court, to prevent confusion therein, may direct all or any portion of the issues joined therein to be tried separately, and may de

1 Cal. Code Civ. Proc., § 427, as amended 1907; N. Y. Code Proc., § 484; Idaho Rev. Codes, § 4169; Mont.

Rev. Codes, § 6533; Or. B. & C. Code, § 94; Wash. Bal. Code, § 412.

termine the order thereof." Under this section, tort and contract may be joined. The fact that part of certain contracts for the direct payment of money are secured and part are not does not prevent their union.3

$ 190. Contract and tort.-Some of the Pacific states follow the New York code in allowing the joinder of claims, whether in contract or tort, or both, arising out of the same transaction or transactions connected with the same subject of action.*

While the California statute contains no such express provision for the joinder of claims arising out of the "same transaction," the courts, by what appears to be a sound construction allow such joinder. In Jones v. Steamship Cortes," the supreme court of California said on this point: "We have but one form of action, and nothing more is required than a statement in ordinary language of the facts relied upon for a recovery. The statute makes no distinction in matters of form between actions of contract and those of tort, and relief is administered without reference to the technical and artificial rules of the common law upon this subject, . . . Our system of pleading is formed upon the model of the civil law, and one of its principal objects is to discourage protracted and vexatious litigation. . . . The provisions for avoiding a multiplicity of suits are to be liberally and beneficially construed, and we see no reason why all matters arising from and constituting part of the same transaction should not be litigated and determined in the same action. Causes of complaint differing in their nature, and having no connection with each other, cannot be united, but the object of the rule is to prevent the confusion and embarrassment which would necessarily result from the union of diverse and incongruous matters, and it has no application to a case embracing a variety of circumstances so connected as to constitute but one trans action."

2 Turner v. First Nat. Bank, 26 Iowa, 562. Dak. Code, § 136, is copied from the Ohio Code; Nev. Comp. St., § 3109; Or. B. & C. Code, § 91.

3 Baldwin v. Napa & S. W. Co. 137 Cal. 646, 70 Pac. 732.

4 Wyo. Rev. Stats., § 2408; N. Dak. Code Civ. Proc., § 136; S. Dak. Code Civ. Proc., § 136; Okla. Code Civ. Proc., § 83.

Jones v. Steamship Cortes, 17 Ca 499, 79 Am. Dec. 142; Pfister Dascey, 65 Cal. 405, 4 Pac. 393; Sloane v. Southern California Ry. Co.. 111 Cal. 677, 44 Pac. 320, 32 L. R A. 193; Waters v. Stevenson, 13 Nev. 164, 29 Am. Rep. 293; Zeile v. Moritz, 1 Utah, 286.

17 Cal. 499, 79 Am. Dec. 142.

An action for breach of contract and for conversion by defendant of property used by plaintiff in performing his part of the contract may be united; as also may an action for breach of carrier's contract be united with an action for personal injury from being ejected from a train. In action on an attachment bond the value of the goods not returned, expenses incurred in dissolving the attachment, loss of time, and attorney's fees may all be joined, since the damage all flows from the same.

cause."

§ 191. Meaning of term "same transaction."-The meaning of the term "same transaction," when a cause of action may be said to "arise out" of it, what is meant by "the same subject of action," and when transactions may be deemed connected with it, are subjects which have given the courts no little trouble, and cases involving practically the same state of facts are frequently found to be irreconcilable in their conclusions. Probably no general rule can be laid down which would apply to all cases, and the courts must determine the question as it is presented by the facts of each particular case. In Wiles v. Suydam,10 the court said: "To invent a rule for determining what the 'same transaction' means, and when a cause of action shall be deemed to 'arise out' of it, and what the 'same subject of action' means, has taxed the ingenuity of many learned judges, and I do not deem it necessary to make the effort to find a solution for these questions. . . . There is certainly ample scope for construction, but it is sometimes difficult to determine what interpretation will best promote the ends of justice."

As stated by Mr. Baylies," "A general allegation in the complaint that the several causes of action therein set forth arose out of the same transaction or transactions connected with the same subject of action does not establish that fact. It should appear satisfactorily and clearly by the pleading itself from the statement of the facts therein that the several causes of action originated in the same transaction. If legal and equitable causes of action are joined, the pleadings must be made broad enough to include both causes of action, and facts must be alleged which would be sufficient to entitle the plaintiff to the relief had he Voss v. Bender, 32 Wash. 566, 73 Pac. 697.

McCorkle v. Mallory, 30 Wash.

632, 71 Pac. 186.

8 Clark v. Great Northern Ry. Co., 31 Wash. 658, 72 Pac. 477.

10 64 N. Y. 177.

11 Code Pl. ch. 9, § 7.