110 Cal. 169 | Cal. | 1895
This action was brought to recover damages from the defendants for the conversion by them of a stock of drugs in the Hotel Brewster Building, in San Diego. The defendants demurred to the complaint upon the ground that it did not state a cause of action, and, upon the overruling of their demurrer, answered the complaint. The cause was tried by the court and judgment rendered in favor of the plaintiff, from which and an order denying a new trial the defendants have appealed.
1. The demurrer was properly overruled. The complaint alleges that the plaintiff had been appointed receiver in an action then pending in the superior court of the county of San Diego, in which one Brickey was the defendant, and that as such receiver he was on the seventeenth day of March, 1893, “ the owner and lawfully entitled to the immediate possession of a stock of goods
The other objections to the complaint urged in the brief on behalf of the appellants would be relevant if there had been a demurrer on the ground of uncertainty or ambiguity, but as these grounds were not specified in the demurrer they were waived, and cannot now be considered.
2. Whatever defect there may have been in the complaint in this particular was removed by the answer of the defendants, wherein they alleged their ownership of the goods, and denied that the plaintiff had had “ at any time since the twelfth day of March, 1893, any interest in, or been entitled to the possession of,” the property sued for. The rule is well settled that a complaint which lacks the averment of a fact essential to a cause of action may be so aided by the averment of that fact in the answer as to uphold a judgment thereon (Pomeroy on Remedies and Remedial Rights, sec. 579; Schenck v. Hartford etc. Ins. Co., 71 Cal. 28), even though a demurrer to the complaint for the want of this fact had been erroneously overruled. (Cohen v. Knox, 90 Cal. 266.) The rule in those cases which hold that when the defendant came lawfully into the possession of the property a demand and refusal must be established in order to charge him with conversion, and must be alleged in the complaint in order to permit of such proof, ceases when the defendant admits in his answer that he has converted the goods to his own use, or alleges facts showing that a previous demand would have been futile. The denial in the answer of a tenant of his tenancy, and of the title of his landlord, obviates the necessity of proving or alleging a notice to quit. (Smith v. Shaw, 16 Cal. 88; Simpson v. Applegate, 75 Cal. 342.) Upon the same principle the claim by a bailee in his answer of the ownership of goods intrusted to his keeping, and a denial of any title in his bailor, obviates the necessity
The judgment and order are affirmed.
Garoutte, J., Van Fleet, J., McFarland, J., Beatty, C. J., Temple, J., and Henshaw, J., concurred.