the ground that it fails to state facts sufficient to constitute a cause of action should be overruled, if any of the counts are sufficient.47 So a demurrer upon the general ground that the complaint does not state facts sufficient to constitute a cause of action is not sustainable, if the complaint states a cause of action in favor of any one of several plaintiffs.48 And upon a general demurrer to a complaint, where the facts necessary to constitute a cause of action are shown by the complaint to exist, although inaccurately or ambiguously stated, or appearing by necessary implication, the demurrer will be overruled.40

A demurrer should be interposed only to the counts badly pleaded; a general demurrer to the whole will be bad.50 So in a covenant where several breaches are assigned, some of which are sufficient and others not, the defendant should only demur to such as are bad; and if he demur to the whole declaration, judgment must be given against him.51 So a demurrer to a whole complaint is bad if one of the plaintiffs may have judgment separately.52 Where a complaint, filed to compel a partnership account, contained sufficient to call upon defendants for an accounting as to a particular branch of their business, but was in other respects. inartificially drawn and insufficient, and a demurrer was put in to the whole complaint, it was held that the demurrer must be overruled.58 Where a demurrer is too general it will be overruled. But in our practice this is not necessary where the demurrer is interposed on the ground that the complaint does not state facts sufficient to constitute a cause of action. If a demurrer is to the whole bill, and is good as to a part, but bad as to a part, it should be overruled.55 For a demurrer bad in part is bad in toto.56 Where the complaint counts upon two promises, the promise to

54

47 Pfister v. Wade, 69 Cal. 133, 10 Pac. 369.

48 O'Callaghan v. Bode, 84 Cal. 489, 24 Pac. 269; Chevret v. Mechanics' etc. Lumber Co., 4 Wash. 721, 31 Pac. 24.

49 Amestoy v. Electric Rapid Transit Co., 95 Cal. 311, 30 Pac. 550.

50 Douglass v. Satterlee, 11 Johns. 16. 51 Gill v. Stebbins, 2 Paine 417, Fed. Cas. No. 5431.

52 Peabody v. Wash. Co. Mut. Ins. Co., 20 Barb. 339.

53 Young v. Pearson, 1 Cal. 448. Where a complaint is sufficient to sus

pay costs and damages, and the promise to pay the value of the use and occupation of the premises, and the objections taken by demurrer to the whole complaint were,-1. That the complaint does not state facts sufficient to constitute a cause of action; 2. That the complaint is ambiguous, unintelligible, and uncertain, and under the first cause a multitude of supposed defects were specified, and under the last none were specified, the demurrer was properly overruled."

§ 243. When demurrer will not lie.-The mistake of the pleader in setting forth the facts constituting a single cause of action in two separate statements, some facts in one and some in another, as constituting separate causes of action, does not render the pleading demurrable.58 Nor will a demurrer lie to a complaint for the defect of not separately stating two or more causes of action, they being such as might be united in one complaint if properly stated;59 but a motion is the proper method of reaching such defect, or defects on account of surplusage or stating conclusions of law.61 Where the complaint in but one count states facts constituting two or more causes of action, or the relief claimed is beyond that authorized by the facts, the remedy is by motion to strike out, not by demurrer.62 So if some of the breaches in a count demurred to are good, a demurrer will not lie;63 though separate demurrers might be interposed to the several causes of action contained in a complaint.64

60

57 Murdock v. Brooks, 38 Cal. 600. 58 Hillman v. Hillman, 14 How. Pr. 456. See Lackey v. Vanderbilt, 10 How. Pr. 155.

59 Moore v. Smith, 10 How. Pr. 361; Harsen v. Bayaud, 5 Duer, 656; Gooding v. McAlister, 9 How. Pr. 123; Welles v. Webster, 9 How. Pr. 251; Robinson v. Judd, 9 How. Pr. 378; Peckham v. Smith, 9 How. Pr. 436; Benedict v. Seymour, 6 How. Pr. 298; Waller v. Raskan, 12 How. Pr. 28; Cheney v. Fish, 22 How. Pr. 236; Township of Hartford v. Bennett, 10 Ohio St. 441; Dorman v. Kellam, 4 Abb. Pr. 202; Badger v. Benedict, 4 Abb. Pr. 176; Bernero v. South British Ins. Co., 65 Cal. 386, 4 Pac. 382. Defects of form of averment or uncertainty cannot be urged upon general demurrer. Ward v. Clay, 82

Cal. 502, 23 Pac. 50, 227; Carpenter v.
Smith, 20 Colo. 39, 36 Pac. 789.

60 San Francisco Pav. Co. v. Fairfield, 134 Cal. 220, 66 Pac. 255; State v. Portland Gen. El. Co. (Or.), 95 Pac. 722.

61 Raiche v. Morrison, 37 Mont. 244, 95 Pac. 1061; Gill v. Manhattan Life Ins. Co. (Ariz.), 95 Pac. 89.

62 Fickett v. Brice, 22 How. Pr. 194; Lord v. Vreeland, 13 Abb. Pr. 195, 24 How. Pr. 316; Sparks v. Smeltzer, 77 Kan. 44, 93 Pac. 338.

63 Hayden v. Sample, 10 Mo. 215; State v. Campbell, 10 Mo. 724; Glover v. Tuck, 24 Wend. 153; Martin v. Williams, 17 Johns. 330; People v. Russell, 4 Wend. 570.

64 Ogdensburgh Bank v. Paige, 2 Code Rep. (N. Y.), 75.

§ 244. The same Motion to strike out.-An answer is not demurrable because not verified, though it may be struck from the files on motion.65 A motion should be used in case damages are pleaded which are barred by the statute of limitations or which have occurred since commencement of the action.66 More particularity in pleading may be asked for by motion to make more definite and certain, and not by general demurrer, or, in some places, by special demurrer.68

§ 245. Demurrer will not lie. If the facts stated in a complaint constitute a valid and sufficient cause of action, though other and unnecessary, immaterial, or redundant statements be contained in it, a demurrer will not lie." Such objections are remedied by motion.70 In New York, a demurrer will not lie for irrelevancy or redundancy." It will not lie for argumentativeness.72 A mere clerical error in a complaint, e. g. the omission in a complaint against two defendants of the letter "s" in the word "defendants, " will not sustain a demurrer." 73 Or if the Christian name of one of the plaintiffs does not appear, it is no ground of de

murrer." If the complaint shows damage, it is not a ground of demurrer that it does not show the amount of damages. The amount of damages is never the subject of demurrer." A complaint which states a cause of action for nominal damages for breach of contract, is good on general demurrer." A demurrer does not raise the objection that the complaint does not show a cause of action for so large a sum as that demanded. Though it seems the demurrer in such case is not frivolous." In an action for the breach of a contract the want of any averment of special damage cannot be reached by a demurrer. Such averment is only necessary where the right of action itself depends upon the special injury received. For the breach of contract an action lies, though no actual damage be sustained.78

The objection that a deed was not signed and acknowledged by a married woman as required by law cannot be raised by demurrer, where the complaint alleges that she signed and delivered such deed. Nor that a bond signed by two has but one seal, for the party who has not actually signed and sealed the bond may specifically plead non est factum, under oath,so although such plea would not avail under the California decisions. A demurrer to evidence is not a good plea to a bill in equity on the ground of its extending beyond the allegations contained in the bill.81 So the insertion of interrogatories in a complaint, after the mode of a bill of discovery, is not a ground for demurrer. 82 It cannot be objected on demurrer to a declaration, alleging fraudulent misrepresentations, that the representations were made as a matter of opinion. A demurrer to a bill which contains allegations of fraud and strong circumstances of equity must be overruled. In such case the defendant must answer to the fraud.84 Nor is the omission of pledges of prosecution in the complaint a ground for demurrer, they being mere matters of form.85 The want of affidavit to a plea is not, in Missouri, a ground for demurrer.86

74 Nelson v. Highland, 13 Cal. 74. 75 Pevey v. Sleight, 1 Wend. 518; Hecker v. DeGroot, 15 How. Pr. 314.

76 Jacobs Sultan Co. v. Union Mercantile Co., 17 Mont. 61, 42 Pac. 109. 77 Witherhead v. Allen, 29 Barb. 661. 78 McCarty v. Beach, 10 Cal. 461; Hewit v. Mason, 24 How. Pr. 366; Sunnyside Land Co. v. Willamette etc. Railway Co., 20 Or. 544, 26 Pac. 835.

79 Kays v. Phelan, 19 Cal. 128.

The

80 Smith v. Hart, 1 Mo. 273. 81 Blackburn v. Stannard, 5 L. R. 250.

82 Bank of British North America v. Suydam, 6 How. Pr. 379.

83 Whitton v. Goddard, 36 Vt. 730. 84 Burnley v. Town of Jeffersonville, 3 McLean, 336, Fed. Cas. No. 2181.

85 Baker v. Philips, 4 Johns. 190. 86 Parker v. Simpson, 1 Mo. 539.

objection to the want of verification of the complaint, where verification is required by statute, must be taken either before answer or with the answer. 87 It has been held that it should be taken by motion when the respondents appear.88

90

§ 246. Objections to prayer for relief.-Objections to the prayer of a complaint cannot be taken by demurrer.89 If the specific relief asked cannot be granted, such relief as the case stated in the bill authorizes may be had under the clause in the prayer for general relief, and even in the absence of such clause when an answer is filed. The facts in the complaint, and not the prayer, settle the relief to be granted. The entire omission of any prayer would not subject the complaint or petition to demurrer.91 Nor will demurrer lie to the demand for more relief than the plaintiff is entitled to.92 If the complaint shows that the plaintiff has a cause of action, and that he is entitled to some relief, the question as to what kind, or how much relief should be granted to him, cannot be made on demurrer. If the complaint state facts which entitle the plaintiff to relief, whether legal or equitable, it is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action.o1 And in such cases a general demurrer is of no avail.95 But if the complaint does not state facts sufficient to enable the plaintiff to recover any part of the relief demanded, it is demurrable, though he would from the facts be entitled to other

87 Greenfield v. Steamer Gunnell, 6 Cal. 67.

88 Woodworth v. Edwards, 3 Woodb. & M. 120, Fed. Cas. No. 18014.

89 Mont. Rev. Codes, §§ 6534-6539, 1003; Donovan v. McDevitt, 36 Mont. 61, 92 Pac. 49.

90 Rollins v. Forbes, 10 Cal. 299; People v. Morrill, 26 Cal. 336, cited in Althof v. Conheim, 38 Cal. 234, 99 Am. Dec. 363; Stewart v. Hutchinson, 29 How. Pr. 181; Mackey v. Auer, 8 Hun, 180; Walker v. Spencer, 13 Jones & S. 71; Garner v. Harmony Mills, 6 Abb. N. C. 212; Garner v. Thorn, 56 How. Pr. 452.

91 Fox v. Graves, 46 Neb. 812, 65 N. W. 887.

92 Rollins v. Forbes, 10 Cal. 299; Andrews v. Shaffer, 12 How. Pr. 443; Beale v. Hayes, 5 Sandf. 640; Emery

93

v. Pease, 20 N. Y. 62; Moran v. Anderson, 1 Abb. Pr. 288; Moses v. Walker, 2 Hilt. 536; Stuyvesant v. Mayor of New York, 11 Paige, 415; Woodgate v. Fleet, 9 Abb. Pr. 222; Hecker v. DeGroot, 15 How. Pr. 314; Bishop v. Edmiston, 16 Abb. Pr. 466; Price v. Brown, 10 Abb. N. C. 67; Howard v. Seattle Nat. Bank. 10 Wash. 280, 38 Pac. 1040, 39 Pac. 100.

93 Poett v. Stearns, 28 Cal. 226. 94 Marriott v. Clise, 12 Colo. 561, 21 Pac. 909.

95 Donahue v. Stockton Gas & El. Co., 6 Cal. App. 276, 92 Pac. 196; Warner v. Warner, 6 Cal. App. 361, 92 Pac. 191; Union Ice Co. v. Doyle, 6 Cal. App. 284, 92 Pac. 112; Donovan v. McDevitt, 36 Mont. 61, 92 Pac. 49.