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CHAPTER XVII.

COMPLAINT-RIGHT OF PLAINTIFF AND LIABILITY OF
DEFENDANT.

§ 223. In general. To say that a complaint must show the plaintiff's right to a recovery and the defendant's liability to the plaintiff is merely to say that the complaint must state facts sufficient to constitute a cause of action. Just what constitutes a proper statement of the right of the plaintiff and the corresponding liability on the part of the defendant, however, is probably the most difficult question that confronts the pleader. As we have already observed, every complaint must be founded on a theory under which the plaintiff is entitled to recover, and must state all the facts essential to support such theory, and failing to do so it is radically defective, and does not state facts sufficient to constitute a cause of action.1

In previous chapters we have discussed the code rules as to construction of pleadings and the mode or manner of stating the necessary facts, assuming that in all cases the pleader understood the respective rights and liabilities of plaintiffs and defendants, and knew, at least in a general way, what must be stated to authorize a recovery by a plaintiff against a defendant in a particular action.

In the present chapter we shall endeavor to determine, in as short space as possible, what facts must be stated in particular classes of actions."

§ 224. Actions on contracts. The requisites which must be carefully observed in the complaint in an action on contract, are: 1. The existence of the contract sued upon and its terms; 2. Performance or a readiness to perform, and a tender of performance on the part of the plaintiff, must be shown; 3. The breach must be clearly apparent; 4. Special damages resulting from the breach must be specifically and clearly averred.

The existence of the contract should be stated, and if it was an alternative or conditional engagement, or qualified by excep

1 Buena Vista etc. Co. v. Tuohy, 107 Cal. 243, 40 Pac. 386.

2 For a fuller discussion of matters applicable to particular classes of actions see vols. III and IV.

If the contract be

tions, this should appear in the complaint. in writing, it may be set out in hæc verba, or it may be stated according to its legal effect. It is probably more consistent with the code system of pleading to set out the contract in terms.* In some cases the pleader must state the contract according to its legal import; for the rule which permits him to declare upon it in hæc verba must of necessity be limited to those cases where the instrument set out contains the formal contract, showing in express terms the promises and undertakings on both sides." Of course, it goes without saying that the plaintiff need not do both; if he sets out the contract merely in substance, the court will construe the contract for him, and determine its legal effect; if he sets out the contract in terms, it would be superfluous to go further and state its legal effect."

It is by far the better practice to plead a contract, if it be in writing, by setting forth a copy of it or by annexing a copy to the complaint,' the same as in actions upon written instruments for the payment of money only; for if the contract be declared upon according to its legal effect, the defendant may, in a proper case, demand the production of the instrument, and, if it appears that its contents have been misstated, he may set the contract out in hac verba and demur on the ground of the variance."

In either case, whatever is pleaded should be truly pleaded, for where a pleading purports to recite an instrument in hæc verba, trifling variances, if material, will be deemed fatal.10 The instrument set forth must be free from defect or ambiguity; if it be. ambiguous, the pleader must put some definite construction upon it by averment.11 But the meaning of words or abbreviations

3 Stone v. Knowlton, 3 Wend. 374; Hatch v. Adams, Cow. 35; Crane v. Maynard, 12 Wend. 408; Barilari v. Ferrea, 59 Cal. 1.

4 Stoddard v. Treadwell, 26 Cal. 300; Murdock v. Brooks, 38 Cal. 603; White v. Soto, 82 Cal. 654, 23 Pac. 210.

5 Joseph v. Holt. 37 Cal. 253; American etc. Contract Co. v. Bullen Bridge Co., 29 Or. 549, 46 Pac. 138; Hudson v. Archer, 4 S. Dak. 128, 55 N. W. 1099; Jacobs Sultan Co. v. Mercantile Co., 17 Mont. 61, 42 Pac. 109. North v. Kizer, 72 Ill. 172; Van Norman v. Wheeler, 13 Tex. 316; Pat

rick v. Colorado Smelting Co., 20 Colo. 268, 38 Pac. 236.

7 Fairbanks v. Bloomfield, 2 Duer, 349; Quirk v. Clark, 7 Mont. 31, 14 Pac. 669.

8 Fiske v. Soule, 87 Cal. 313, 25 Pac. 430.

9 Stoddard v. Treadwell, 26 Cal. 300; Los Angeles v. Signoret, 50 Cal. 298; Aultman v. Siglinger, 2 S. Dak. 446, 50 N. W. 911.

10 Ferguson v. Harwood, 7 Cranch, 408, 3 L. Ed. 386.

11 Durkee v. Cota, 74 Cal. 315, 16 Pac. 5; Lambert v. Haskell, 80 Cal. 613, 22 Pac. 327.

used in the writing may be proved at the trial, for the purpose of enabling the court to interpret it, and the oral evidence as to their meaning need not be stated in the pleading; nor do abbreviations contained in the contract render the pleading bad on special demurrer. 12 Preliminary and collateral matters of substance must be alleged, and mere recitals in the instrument cannot serve as such allegations.13

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Records and papers cannot be made a part of a pleading by merely referring to them and praying that they may be taken as part of such pleading, without annexing the originals or copies. as exhibits or incorporating them so far as to form a part of the record in the cause. By pleading a record with the words, "as appears by the record," or "as appears of record," the party proffers that issue and is bound to maintain it literally; and this is true where the averment has reference to particulars which need not, as well as to those which must, be specifically stated on the record.15

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§ 225. Assumpsit-Common counts. The right to rely upon the common counts has been established by the California decisions. So a complaint in assumpsit which states a cause of action need not set forth the items of the account; but if the defendant desires more particular information as to the items, he may demand a bill of particulars. While, however, the common counts are in some cases sufficient under the codes, they are insufficient in those cases where they were insufficient under the old system of pleading."

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Where a complaint framed in accordance with the common counts clearly indicates that the same cause of action was stated in each count, a finding for the plaintiff on one of the counts,

12 Callahan v. Stanley, 57 Cal. 476; Berry v. Kowalsky, 95 Cal. 134, 29 Am. St. Rep. 101, 30 Pac. 202.

13 Lambert v. Haskell, 80 Cal. 611, 22 Pac. 327; Leadville Water Co. v. Leadville, 22 Colo. 297, 45 Pac. 362; Tooker v. Arnoux, 76 N. Y. 397; Weiner v. Lee Shing, 12 Or. 276, 7 Pac. 111; United States Life Ins. Co. v. Gage, 3 N. Y. Supp. 398.

14 People v. De La Guerra, 24 Cal. 78. See Ward v. Clay, 82 Cal. 505, 23 Pac. 50, 227; Simon v. Durham, 10 Or. 55.

15 Purcell v. McNamara, 9 East, 160; Whitaker v. Bramson, 2 Paine, 209, Fed. Cas. No. 17526.

16 Buckingham v. Waters, 14 Cal. 146; De Witt v. Porter, 13 Cal. 171; Farwell v. Murray, 104 Cal. 464, 38 Pac. 199; Pleasant v. Samuels, 114 Cal. 34, 45 Pac. 998; Brown v. Board of Education, 103 Cal. 531, 37 Pac. 503.

17 Farwell v. Murray, 104 Cal. 464, 38 Pac. 199.

18 Barrere v. Somps, 113 Cal. 97, 45 Pac. 177.

without findings on the others, is sufficient to support a judgment in his favor.19 A complaint in an action by a contractor to enforce a mechanic's lien, in which the special contract between the contractor and the owner of the building is stated, may be changed by amendment into an action on the contract, which may be counted on specially, or the common counts may be used, in accordance with the general rules applicable thereto.20 A contractor is not bound, as a matter of pleading, to declare upon the contract, but may declare for work and materials and prove the contract.21

§ 226. Allegations of promise.-Where the contract declared upon contains an express promise, it should be alleged and proved. In such case the promise itself is the fact constituting the cause of action, but if the promise is to be implied from other facts alleged it need not be averred. And in the absence of an express promise every fact essential to fix the liability of the defendant should be stated; for, of course, where the plaintiff does not allege a contract or agreement in his pleadings he cannot recover upon it.22

An implied promise is a mere conclusion of law, and the facts. from which such promise is to be implied must be stated. the rule is different in the case of an express promise, which is an ultimate fact, and must be pleaded as such, though the word "express" need not be used in pleading the promise. When a promise is alleged in a pleading it must be deemed to have been express.23 In an action to enforce a promise alleged to have been made by the defendant on a certain day, the plaintiff is entitled to recover upon proof that the promise was made at any time prior to the commencement of the action. He need not prove that it was made at or about the time alleged in the complaint. So, also, a party who has wholly performed a special

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19 Leeke v. Hancock, 76 Cal. 127, 17 Pac. 937.

20 Castagnino v. Balletta, 82 Cal. 250, 23 Pac. 127. See, also, Cox v. McLaughlin, 76 Cal. 60, 9 Am. St. Rep. 164, 18 Pac. 100; Galvin v. MacMilling Co., 14 Mont. 508, 37 Pac. 366.

21 Kirchner v. Laughlin, 39 N. Y. Supp. 312.

22 Wilkins v. Stidger, 22 Cal. 235, 83 Am. Dec. 64; Shade v. Sisson Co.,

115 Cal. 367, 47 Pac. 135; Campbell v. Shiland, 14 Colo. 492, 23 Pac. 324; Busta v. Wardall, 3 S. Dak. 146, 52 N. W. 418; Blackwell Durham Tobacco Co. v. McElwel, 96 N. C. 71, 60 Am. Rep. 404, 1 S. E. 676. See, also, Ankeny v. Clark, 1 Wash. 554, 20 Pac. 583.

28 Poly v. Williams, 101 Cal. 648, 36 Pac. 102.

24 Biven v. Bostick, 70 Cal. 639, 11 Pac. 790.

contract on his part may count upon the implied agreement of the other party to pay the stipulated price, and is not bound to specially declare on the agreement."

In pleading a contract which the statute of frauds requires to be in writing it is not necessary to allege the facts relied upon to take the case out of the statute. It is sufficient to allege that the contract was made. There is no reason for departing, under the code, from the well-settled rules in law and equity;26 and where a contract within the statute is declared upon the court will presume that it was in writing.27 In other words, the existence or non-existence of such a writing is a matter of evidence, and its non-existence is a matter of defense.28

§ 227. Allegations of consideration. It is always necessary in actions of contract to allege consideration, except in those cases where the law imports consideration.29 In those cases where the law imports consideration the averment is surplusage. It may be stated as a general rule, however, that in all cases the consideration must appear on the face of the complaint, either impliedly, as where the character of the instrument imports consideration, 30 or expressly, wherever proof of it is necessary to support the action, for in its absence no action can be maintained.31

In California, any written instrument is presumptive evidence of a consideration.32 So a complaint which alleges that a corporation defendant executed a contract in writing, whereby it agreed

25 Steeples v. Newton, 7 Or. 110, 33 Am. Dec. 705; Tribou v. Strowbridge, 7 Or. 156.

26 Curtiss v. Ætna Life Ins. Co., 90 Cal. 245, 25 Am. St. Rep. 114, 27 Pac. 211; Etling v. Vanderlyn, 4 Johns. 237; Myers v. Morse, 15 Johns. 425.

27 Wakefield v. Greenhood, 29 Cal. 598; Mills v. Thorne, 38 Cal. 337, 99 Am. Dec. 384; McMenomy v. Talbot, 84 Cal. 279, 23 Pac. 1099; Tucker v. Edwards, 7 Colo. 209, 3 Pac. 233; Bowman v. Ainslie, 1 Idaho, 644; Sweetland v. Barrett, 4 Mont. 217, 1 Pac. 745; Alber v. Alber, 3 Or. 322; Russell v. Swift, 5 Or. 233; Kilpatrick-Koch etc. Co. v. Box, 13 Utah, 494, 45 Pac. 629.

28 Livingston v. Smith, 14 How. Pr. 490; Wakefield v. Greenhood, 29 Cal. 597; McDonald v. Mission View etc. Assoc., 51 Cal. 210; Nunez v. Morgan, 77 Cal. 427, 19 Pac. 753; Barnard v. Lloyd, 85 Cal. 131, 24 Pac. 658.

29 Moore v. Waddle, 34 Cal. 145; McFadden v. Crawford, 39 Cal. 662; Hayden v. Steadman, 3 Or. 550; Felt v. Judd, 3 Utah, 414, 4 Pac. 243; Wills v. Kempt, 17 Cal. 99; Henke v. Eureka Endowment Assoc., 100 Cal. 432, 34 Pac. 1089; Northern Kansas Town Co. v. Oswald, 18 Kan. 339.

30 McCarty v. Beach, 10 Cal. 461; Wills v. Kempt, 17 Cal. 98.

31 Bristol v. The Rensselaer & Co., 9 Barb. 158.

32 Cal. Civ. Code, § 1614.

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