P. H. KRANER, Appellant, v. ABRAHAM HALSEY, Respondent, 82 Cal. 209

Thornton, J. Judgment passed for defendant herein, and plaintiff appealed therefrom. The questions to be considered arise on a demurrer to the complaint. The first ground of the demurrer, that the complaint does not state facts sufficient to constitute a cause of action, is manifestly untenable. The complaint states the payment of a sum of money by plaintiff at the special instance and request of defendant, for which money so paid defendant is indebted to him, and that he (defendant) has failed and refused to pay this money, or any part of it.

The law on, the facts stated implies a promise by defendant to pay the money to the person paying it at defendant’s request, and in such case it is unnecessary to aver the promise. That which is implied by law need not be averred. (Stephen’s Pleading, 353, 354; Gould’s Pleading, c. 3, sec. 8.) The preceding statements are matters of inducement only. The second ground of demurrer is, that the cause of action set forth in the complaint is barred by the provisions of

section 337, and by subdivision 1 of

section -339, and by

section 343 of the Code of Civil Procedure of this state. These sections are a part of the statute law of this state, limiting the period within which actions may be commenced. It does not appear on the face of the complaint when the money was paid by plaintiff at the request of defendant. To hold that the cause of action sued on is barred, on a demurrer to the complaint, it must so appear from the allegations of the complaint. Here it does not so appear. The date of the payment is not stated in the pleading.

How, then, can any court say that the payment made at request of defendant was not made within sixty days or one day before the commencement of the action, or that the request of defendant, by reason of which the payment was made, was not made within ten days before action brought ? The demurrer must be determined on the allegations of the pleading before the court. A court is not allowed to speculate on what might have happened, or what might not have occurred, in view of the averments of the complaint. It must decide on the complaint and its averments. See Ord v.

De la Guerra, 18 Cal. 75, where it was held that when a complaint shows prima facie upon the facts stated that the claim is barred by the statute of limitations, the defendant may take advantage of the defect by demurrer; yet it must clearly so appear. It is far from clearly appearing here. In fact it does not appear at all. The second ground of demurrer is untenable. A further and third ground of demurrer is, “that the complaint is ambiguous, uncertain, and unintelligible,” etc., in several particulars which are specified.

The specifications of uncertainty, ambiguity, and unintelligibility are in the demurrer designated by the letters from a to h, inclusive. As to specification a, it clearly appears that the action here is on the implied promise. What precedes this portion of the complaint is mere inducement, which might have been left out of the pleading without impairing its sufficiency. Specifications c, d, and h, relate to inducement, and therefore to immaterial averments. The rule is never applied in the English practice to matters of inducement (Stephen’s Pleading, 292), and should not be applied with any strictness here.

Specification g relates to immaterial matter. Specifications e and / relate to times or dates, and in this regard the complaint may be considered uncertain. We are of opinion that the complaint is neither ambiguous nor unintelligible. It is uncertain in not stating the date or time of several issuable facts averred, and perhaps on other matters. If the defendant had demurred on the ground of uncertainty alone (and this is allowed by the statute, Code Civ. Proc., sec. 430, subd. 7), we should hold that the demurrer for uncertainty was ■well taken.

But the defendant has stated his grounds of demurrer conjunctively, “that the complaint is ambiguous, uncertain, and unintelligible.” And when, upon a demurrer so framed, this court can see that the pleading is neither ambiguous nor unintelligible, we cannot hold the demurrer properly sustained, though it may in some particulars be so uncertain that a demurrer on such ground would lie.

The defects and imperfections must be especially set down, as under the statute of 27 Eliz., c. 5, sec. 1, and 4 & 5 Anne, c. 16. (See Gould’s Pleading, c. 9, pt. 1, sec. 9, etc.) The plaintiff is not called on, when the demurrer is taken, as in this case, to defend his complaint from each ground, when one of the grounds does not exist. All the defects pointed out and conjoined by the copulative particle “and” must exist, or the de: murrer must be overruled.

As to the alleged ambiguity of the complaint, we will further ■ observe that ambiguity signifies “the quality or state of being ambiguous; doubtfulness or uncertainty, particularly of signification.” Webster so defines it. He defines ambiguous in these words: “Doubtful or uncertain, particularly in respect to signification; equivocal, as an -ambiguous course; an ambiguous expression.” As illustrative of his

definitions he quotes the following couplet from Milton:— “What have been thy answers, —what but dark, Ambiguous, and with double sense deluding?” He gives as synonyms, “ Indeterminate; indefinite; doubtful; uncertain; unsettled; indistinct; equivocal.” On reading the complaint with ordinary care, we cannot perceive that it can be pronounced either doubtful, uncertain, or equivocal in its meaning. The word “uncertainty,” in the statute, refers to the uncertainty defined by the authorities in pleading, and such authority does not include ambiguity.

As to what is uncertainty, see Gould’s Pleading, c. 3, secs. 51-101, and c. 4, secs. 23-37; also Stephen’s Pleading, sec. 4, c. 2. In Salmon v. Wilson, 41 Cal. 595, it was held that a demurrer on the ground of ambiguity should be overruled, if enough appear to render the pleading demurred to easy of comprehension and free from reasonable doubt. The allegations of the complaint are easy of comprehension and free from reasonable doubt as to their meaning. We think they are clearly intelligible. The court below erred in sustaining the demurrer to the complaint. The judgment is reversed, and the cause remanded.

The court a qua is directed to overrule the demurrer to the complaint, with leave to defendant to answer, allowing the plaintiff, should he be so advised, to amend his complaint so as to make it more certain. Ordered accordingly. McFarland, J., and Sharpstein, J.,.concurred.