30 Cal. 92 | Cal. | 1866
The complaint contains two causes of action—the first for an alleged breach of contract between the plaintiff and defendants by which the plaintiff was to give his services in superintending the construction of certain tunnels for mining-purposes in Nevada, for which he was to receive a certain interest in the tunnels and in the mines to be developed; and the second, for moneys advanced and expended by plaintiff in constructing said tunnels for and on account of said defendants, and at their request. The defendants demurred to the whole complaint on the ground of defect of parties in not joining either as plaintiffs or defendants certain other persons, who had entered into another contract relating to the same subject matter, which latter contract was referred to in the sub-contract between plaintiff and defendants. Also, to the first cause of action stated in the complaint on the ground that the facts stated are insufficient to constitute a cause of action. There was no demurrer to the second cause of action stated in the complaint. The demurrer to “plaintiff’s complaint” was sustained and leave to amend given. Afterward “ the demurrer of defendants to the plaintiff’s complaint having been sustained, and the time allowed the plaintiff to amend having expired, and no amended complaint having been filed,” judgment was entered for the defendants. The Court does not seem to have - passed upon the demurrer to the first cause of action set out. It was the demurrer to the entire complaint that was sustained. Such is the natural import of the order and judgment, and it must be so, because the judgment after failure to amend is for the defendants; whereas if the demurrer to the complaint as a whole was not sustained, there was one good count not demurred to, upon which, no answer haying been filed, there must have been a judgment for plaintiff.
Averment of damages in a complaint for breach of contract.
The sufficiency of the first cause of action has also been argued. The contract, the breach and the refusal to make any recompense for plaintiff’s services, to plaintiff’s damage,
There was no partnership between plaintiff and defendants created by the contract in question. There was no community of profit and loss. It was' simply an agreement on one side to perform certain services, and on the other side to convey,
Judgment and order sustaining the demurrer reversed, and cause remanded for further proceedings.
Sanderson, J., Shafter, J., and Rhodes, J., concurring specially.
We concur in the judgment, but do not desire to intimate any opinion as to what is the measure of damages.