SOPHIA McFARLAND, Appellant, v. LULIE CARR HOLCOMB, Executrix, etc., et al., Respondents, 123 Cal. 84

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 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.

The demurrer to the complaint for uncertainty in failing to show how much is claimed for nursing, and how much for boarding and lodging, and how much for taking care of the deceased, and also in failing to show to what extent the defendants are liable on the different causes of action contained therein, should not have been sustained. It sufficiently appears from the complaint that the plaintiff’s cause of action is for services rendered by her to the deceased.

The nature of the services alleged to have been rendered, and the averment that they were rendered “almost continuously” between certain dates, sufficiently show that she has but a single claim therefor, and the enumeration in the complaint of the different kinds of services does not constitute a uniting of different causes of action any more than a complaint for goods sold and delivered is a union of different causes of action for each item that was sold.

It does not appear from the complaint that the plaintiff makes separate claim for each kind of services rendered, and they are not of such a nature as presumptively to indicate that separate compensation should be made for them. If the defendants desired to ascertain the items of the claim they could have obtained the same under the provisions of

section 454 of the Code of Civil Procedure. The failure to state the times at which the services were rendered, or when the claim for the items thereof accrued, or the amount claimed for each kind of service, does not authorize a demurrer for uncertainty or ambiguity. (Wise v. Hogan, 77 Cal. 184; Pleasant v. Samuels, 114 Cal. 34.) Neither is the complaint uncertain because it cannot be determined therefrom whether any portion of the claim is barred by the statute of limitations. The statute of limitations is an affirmative defense, and, if relied upon, must be asserted by the defendant.

It cannot be raised by demurrer unless it affirmatively appears upon the face of the complaint that the defense exists, and, even in that ease, it must be specifically stated in the demurrer as the ground relied upon to show that, from the averments in the complaint, no cause of action exists against the defendant. (Wise v. Williams, 72 Cal. 544; Pleasant v. Samuels, supra.) At the time of filing their demurrer the defendants moved the court that the plaintiff make her complaint more definite and certain.

The court granted their motion, and made an order May 3, 1897, that she make her complaint more definite and certain, and that she state her cause of action for services rendered and for board and lodging separately from each other, and that she so amend her complaint within ten days, and at the same time continued the hearing of the demurrer until the seventh of June. On this last day the court made its order sustaining the demurrer upon which the judgment appealed from was entered.

In New York and in other states where the reform procedure prevails, uncertainty and ambiguity are not made grounds of demurrer to the complaint, but by a

section of the code authorizing the same the court may require the plaintiff to make his complaint more definite and certain. In this state, however, the legislature in 1877 added to

section 430 of the Code of Civil Procedure, as one of the grounds of demurrer to the complaint “that the complaint is ambiguous, unintelligible, or uncertain,” and by reason of this provision any objection to the complaint upon these grounds must be taken by demurrer. There was no authority, therefore, for the court to make the order of Hay 3, and its subsequent action sustaining the demurrer must be regarded as the action upon which the judgment was entered. The plaintiff has appealed from the order of May 3d, but that order is not appealable.

The judgment is reversed, and the superior court is directed to overrule the demurrer and give to the defendants leave to answer the complaint within such time as it may deem proper. Garoutte, J., and Van Fleet, J., concurred.