Cosgrove v. Fisk

Foote, C.

— The plaintiff, going by the name of Ida M. Carroll when a certain agreement, marked “Exhibit A,” to the amended complaint herein, was entered into, which affected certain of her rights and interests, brought this action against the defendant, Fisk, under her present name of Ida M. Cosgrove. The complaint was demurred to upon several grounds, and the demurrer sustained. Thereupon the plaintiff declined to amend the complaint, leave having been given her to do so; judgment was made and entered that she take nothing by her action, and that the same be dismissed. From that this appeal is taken.

The complaint contains but one count, and has united therein and mingled together a cause of action based upon the incurring by the plaintiff of sixty dollars costs, etc., in having to bring suit against the defendant to force him to comply with his agreement in writing to reconvey certain lands and premises to the plaintiff, which she had before that conveyed to him, which sum of money, claimed to be reasonably due the plaintiff by the defendant, it is alleged he refuses to pay, with a cause of action, based upon the alleged fraud, malice, and oppression of the defendant, which omits to state the facts showing such fraud, and a cause of action arising from the breach of the defendant’s covenant, contained in an instrument, Exhibit B, made by him to the plaintiff, which covenant, it is claimed, binds him that the property he has conveyed is free and clear of all encumbrances and liens made, done, or suffered by him.

It will readily be perceived from an examination of the pleading objected to that it mingles together several distinct causes of action, not all belonging to any one of the classes mentioned in section 427 of the Code of Civil Procedure, which rendered the complaint obnoxious to the demurrer that several causes of action were improperly united. (Code Civ. Proc., sec. 430, subd. 5; Nevada and Sac. Canal Co. v. Kidd, 43 Cal. 184; White v. Cox, 46 Cal. 170; Watson v. San Francisco & H. B. R. R. Co., 41 Cal. 17.)

Furthermore, the cause of action based upon the alleged fraud of the defendant failed to aver the facts showing the fraud, and comes within the fourth ground of the demurrer, which is well taken. (Payne v. Elliott, 54 Cal. 340; 35 Am. Rep. 80; Pehrson v. Hewitt, 79 Cal. 598.)

For these reasons, we advise that the judgment be affirmed.

Fitzgerald, C., and Belcher, C., concurred.

The Court.

— For the reasons given in the foregoing opinion, the judgment is affirmed.