40 P. 747 | Cal. | 1895
This action was commenced August 29, 1891, by Peter J. Christensen against H. P. Jessen, to recover damages alleged' to have been sustained by the plaintiff by reason of fraudulent misrepresentations made to him by defendant. All the issues, except that arising upon defendant’s plea of the statute of limitations, were submitted to a jury, which found a verdict in favor of the plaintiff for $2,000 damages; and, the court having found for the plaintiff upon the plea of the statute of limitations, judgment was entered upon the verdict, and defendant appeals therefrom, and from an order denying his motion for a new trial. Appellant concedes that the evidence was conflicting, and that the verdict of the jury upon the facts must be accepted, leaving only questions of law to be considered. Peter J. Christensen died since the trial, and his executrix has been duly substituted; but, for convenience, he will be referred to as plaintiff and respondent in this opinion, as though still in life.
Plaintiff was the owner of a salt claim in Alameda county. In October, 1883, he executed to defendant a lease of the same for the term of five years, commencing January 1, 1884, at an annual rent of $500, with the privilege of a renewal for five years more on the same terms; but the lease prohibited the defendant from letting or underletting the whole or any part of the premises without the written consent of the plaintiff. The defendant also owned a salt claim adjoining that of plaintiff, and was the lessee of another claim owned by Peter Mattison. In the early part of 1887 the Union Pacific Salt' Company, the American Salt Company, B. F. Barton, E. M. Block, John A. Plummer and Charles A. Plummer formed a combination or company for the purpose of controlling all the salt claims in that locality, and, among them, those controlled by defendant. The combination made defendant a satisfactory offer for his own and the Mattison claim, but that offer was conditioned upon securing plaintiff’s claim also, to accomplish which plaintiff’s written consent was necessary, and the company also desired to have the option of a second renewal of the lease from plaintiff for the term of five years. On March 10, 1887, the defendant called on plaintiff, and informed him that the company wanted to secure his (plaintiff’s) salt claim, but that he (defendant) had no right to lease it. There was then about two years of the original term of five years of defendant’s lease unexpired, and plaintiff said,
Appellant contends that his demurrer to the complaint should have been sustained. The grounds alleged were that facts sufficient to constitute a cause of action were not stated, and that the cause of action was barred by the statute of limitations, specifying subdivision 4, section 338, and subdivision 1, section 339, of the Code of Civil Procedure. He insists that the complaint is fatally defective in not negativing a discovery of the facts constituting the fraud more than three years before commencing the action. The averments of the complaint objected to are as follows: “That plaintiff did not discover the said fraud perpetrated upon him by defendant until, to wit, on or about the 18th day of August, 1891; that, long prior to the last-named date, plaintiff discovered the true effect and meaning of said indorsement, but, until the last-named date, supposed the same to have been the result of mistake.” Plaintiff’s allegation above quoted is not as full and specific as it should have been, but no objection upon that ground was taken by demurrer, nor was any objection made to the admission of evidence upon the ground that said allegation was insufficient, or in any respect uncertain or defective. The evidence being sufficient, and having been received without objection, the judgment should not be reversed because of a defective allegation which did not mislead the defendant, and which was treated upon the trial as sufficient. This rule is constantly adhered to in this court, and is applied
The answer of defendant contained pleas of the statutes of limitation, which, upon the trial, were submitted to the court, and found in favor of the plaintiff; and in so finding, it is contended, the court erred. It is argued that plaintiff’s cause of action falls under subdivision 1 of section 339, Code of Civil Procedure, which limits' an action upon a contract, obligation, or liability not founded upon an instrument of writing to two years, and that it does not fall under subdivision 4 of section 338, limiting actions to three years, which subdivision is as follows: “(4) An Action for Relief on the Ground of Fraud or Mistake. The cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of thé facts constituting the fraud or mistake.” His argument is that the “relief” to which reference is made in the section last above cited is “equitable relief,” and that this is an action at law for damages, and, in support of that proposition, cites Piller v. Railroad Co., 52 Cal. 42. That was an action against a railroad company for personal injuries received in a collision. The statement there made was that “the first clause of subdivision 1 of section 339 is applicable to all actions at law, not specifically mentioned in other portions of the statute. We say actions at law advisedly, since section 343 fixes the time within which certain bills in equity may be filed.” Counsel’s argument concedes that an action at law will lie for fraud, and, if so, it is one of these cases “specifically mentioned in other portions of the statute.” The section of the code in question applies to any and all actions permitted by the code for the purpose of obtaining relief upon the ground of fraud or mistake, whether such action be legal or equitable. The code expressly uses the word “relief” to designate the object of all civil actions. Section 426 of the Code of Civil Procedure provides: “The complaint must contain: .... (3) A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof must be stated.” Appellant further distinguishes between “knowledge of the fraud,” and “knowledge of the facts constituting the fraud,” and insists that plaintiff had such knowledge of . the facts as charged him with a knowledge of the fraud more than three
It is not necessary to determine whether the court erred in permitting the plaintiff to testify as to the rental paid by the company for other salt claims in the same neighborhood, and the quantity of salt produced by each; for, if it be conceded that defendant’s objection should have been sustained, the judgment should not be reversed upon that ground, since the
We concur: Belcher, C.; Britt, C.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.