3071. When a demurrer lies. A demurrer lies only when an entire pleading, that is an entire cause of action, is insufficient,33 as a part of a cause of action can not be demurred to.34 So, if any part of a bill demurred to is good, demurrer to the whole can not be sustained.35 If the complaint contains one good cause of action, a general demurrer to the whole complaint will not lie.36 A demurrer must be directed to the whole of a pleading, or to a particular and separate statement of a cause of action or defense. It can not be directed to certain lines thereof.37 On a general demurrer (unless for misjoinder of actions) judgment must be given for the plaintiff, if there is one good count in the declaration.38

the truth of all allegations which are well pleaded, however improbable the facts alleged may be. Woodruff v. Howes, 88 Cal. 184; and see Freeman v. Hart, 61 Iowa, 525; Peterson v. Roach, 32 Ohio St. 374. When, however, allegations in a pleading are admitted for the purpose of a demurrer, they are admitted for that purpose only, and should not be commented on by the court as if they were de facto true. Day v. Brownrigg, 10 Ch. Div. 294; Rice v. Rice, 13 Oreg. 337.

33 1 Van Santv. 184.

34 Lord v. Vreeland, 15 Abb. Pr. 122; Wait v. Ferguson, 14 id. 379; Mattoon v. Baker, 24 How. Pr. 329; Hayden v. Anderson, 17 Iowa, 158.

35 Kuypers, etc., v. Ministers, etc., of Reformed Dutch Church, 6 Paige Ch. 570; Story's Eq. Pl., § 443; Whiting v. Heslep, 4 Cal. 327; Weaver v. Conger, 10 id. 233; Martin v. Mattison, 8 Abb. Pr. 3; Atwill v. Ferrett, 2 Blatchf. 39; Marshall v. Bouldin, 8 Mo. 244; Butler v. Wood, 10 How. Pr. 222; Cooper v. Clason, 1 Code R. (N. S.) 347; Souza v. Belcher, 3 Edw. Ch. 117; Livingston v. Story, 9 Pet. 632; Livingston v. Livingston, 4 Johns. Ch. 294; Higinbotham v. Burnett, 5 id. 184; Parsons v. Bowne, 7 Paige, 354; Griggs v. Thompson, 1 Ga. Dec. 146; Hollsclaw v. Johnson, 2 id. 146; Jaques v. Morris, 2 E. D. Smith, 639; Fancher v. Ingraham, 6 Blackf. 139. 36 Griffiths v. Henderson, 49 Cal. 566; Fleming v. Albeck, 67 id. 226; McCann v. Pennie, 100 id. 547; McCartney v. Glassford, 1 Wash. St. 579; Pinkum v. Eau Claire, 81 Wis. 301; Victory Webb Printing Co. v. Beecher, 26 Hun, 48; 97 N. Y. 651.

37 Locke v. Peters, 65 Cal. 161; Herefort v. Cramer, 4 West Coast Rep. 229; Reed v. Davis, 67 Cal. 491.

381 Bos. & Pul. (N. R.) 43; Stoddard v. Treadwell, 26 Cal. 294; Whitney v. Crosby, 3 Cai. 89; Gidney v. Blake, 11 Johns. 54; Martin v. Williams, 13 id. 264; Monell v. Colden, id. 395; 7 Am. Dec. 390; Mumford v. Fitzhugh, 18 Johns. 457; People v. Bartow, 6 Cow. 290; Freeland v. McCullough, 1 Den. 414; 43 Am. Dec. 685; Wolfe v. Luyster, 1 Hall, 146; Ward v. Sackrider, 3 Cai. 263; French

A demurrer should be interposed only to the counts badly pleaded; a general demurrer to the whole will be bad.39 So, in covenant, where several breaches are assigned, some of which are sufficient and others not, the defendant should only demur to such as are bad; and if he demur to the whole declaration, judgment must be given against him.40 So a demurrer to a whole complaint is bad if one of the plaintiffs may have judgment separately.41 Where a complaint, filed to compel a partnership account, contained sufficient to call upon defendants for an accounting as to a particular branch of their business, but was in other respects inartificially drawn and insufficient, and a demurrer was put in to the whole complaint, it was held that the demurrer must be overruled.42 Where a demurrer is too general, it will be overruled.43 But in our practice this v. Tunstall, Hempst. 204; McCue v. Corpor. of Wash., 3 Cranch O. C. 639; Brown v. Duchesne, 2 Curtis C. C. 97; Vermont v. Society for Prop. of Gospel, 2 Paine C. C. 545; Clark v. Smith, 4 West Coast Rep. 91. A general demurrer to a whole complaint which contains two counts or two causes of action is properly sustained, where neither of the counts states a cause of action, and it is not necessary that the demurrer in such case should refer to either of the counts separately. Churchill v. Pac. Imp. Co., 96 Cal. 490. But where a complaint contains several counts, a general demurrer thoreto on the ground that it fails to state facts sufficient to constitute a cause of action should be overruled, if any of the counts are sufficient. Pfister v. Wade, 69 Cal. 133. So, a demurrer upon the general ground that the complaint does not state facts sufficient to constitute a cause of action is not sustainable, if the complaint states a cause of action in favor of any one of several plaintiffs. O'Callaghan v. Bode, 84 Cal. 489; Chevret v. Lumber Co., 4 Wash. St. 721. And upon a general demurrer to a complaint, where the facts necessary to constitute a cause of action are shown by the complaint to exist, although inaccurately or ambiguously stated, or appearing by necessary implication, the demurrer will be overruled. Amestoy v. Electric Rapid Transit Co., 95 Cal. 311.

39 Douglass v. Satterlee, 11 Johns. 16.

40 Gill v. Stebbins, 2 Paine, 417.

41 Peabody v. Wash. Co. Mut. Ins. Co., 20 Barb. 339.

42 Young v. Pearson, 1 Cal. 448. Where a complaint is sufficient to sustain a judgment, although it may be carelessly drawn, a general demurrer is properly overruled. Lawrence Nat. Bank v. Kownesky, 105 Cal. 41.

43 Young v. Pearson, 1 Cal. 448; People v. Morrill, 26 id. 361; Stoddard v. Treadwell, id. 294.

is not necessary where the demurrer is interposed on the ground that the complaint does not state facts sufficient to constitute a cause of action. If a demurrer is to the whole bill, and is good as to a part, but bad as to part, it should be overruled.44 For a demurrer bad in part is bad in toto.45 Where the complaint counts upon two promises, the promise to pay costs and damages, and the promise to pay the value of the use and occupation of the premises, and the objections taken by demurrer to the whole complaint were: 1. That the complaint does not state facts sufficient to constitute a cause of action; 2. That the complaint is ambiguous, unintelligible, and uncertain, and under the first cause a multitude of supposed defects were specified, and under the last none were specified, the demurrer was properly overruled.46

§ 3072. When demurrer will not lie. The mistake of the pleader in setting forth the facts constituting a single cause of action in two separate statements, some facts in one and some in another, as constituting separate causes of action, does not render the pleading demurrable.47 Nor will a demurrer lie to a complaint for the defect of not separately stating two or more causes of action; they being such as might be united in one complaint if properly stated.48 Where the complaint in but one count states facts constituting two or more causes of action, or the relief claimed is beyond that authorized by the facts, the remedy is by motion to strike out, not by demurrer.45

44 People v. Morrill, 26 Cal. 360.

45 Verplank v. Caines, 1 Johns. Ch. 57; Le Fort v. Delafield, 3 Edw. Ch. 32; Thompson v. Newlin, 3 Ired. Ch. 388; Russell v. Lanier, 4 Hayw. (Tenn.) 289; Kimberly v. Sells, 3 Johns. Ch. 467.

46 Murdock v. Brooks, 38 Cal. 600.

47 Hillman v. Hillman, 14 How. Pr. 456; see Lackey v. Vanderbilt, 10 id. 155.

48 Moore v. Smith, 10 How. Pr. 361; Harsen v. Bayaud, 5 Duer, 656; Gooding v. McAlister, 9 How. Pr. 123; Welles v. Webster, id. 251; Robinson v. Judd, id. 378; Peckham v. Smith, id. 436; Benedict v. Seymour, 6 id. 298; Waller v. Raskan, 12 id. 28; Cheney v. Fisk, 22 id. 236; Township of Hartford v. Bennett, 10 Ohio St. 441; Dorman v. Kellam, 4 Abb. Pr. 202; Badger v. Benedict, id. 176; Bernero v. Insurance Co., 3 West Coast Rep. 292; 65 Cal. 386. Defects of form of averment or uncertainty can not be urged upon general demurrer. Ward v. Clay, 82 id. 502; Carpenter v. Smith, 20 Col. 39.

49 Fickett v. Brice, 22 How. Pr. 194; Lord v. Vreeland, 13 Abb. Pr. 195; S. C., 24 How. Pr. 316.

So, if some of the breaches in a count demurred to are good, a demurrer will not lie;50 though separate demurrers might be interposed to the several causes of action contained in a complaint.51

55

If the facts stated in a complaint constitute a valid and sufficient cause of action, though other and unnecessary, immaterial, or redundant statements be contained in it, a demurrer will not lie.52 Such objections are remedied by motion.53 In New York, a demurrer will not lie for irrelevancy or redundancy. It will not lie for argumentativeness. A mere clerical error in a complaint, e. g., the omission in a complaint against two defendants of the letter "s" in the word " defendants," will not sustain a demurrer.56 Or if the Christian name of one of the plaintiffs does not appear, it is no ground of demurrer.57 If the complaint shows damage, it is not a ground of demurrer

50 Hayden v. Sample, 10 Mo. 215; State v. Campbell, id. 724; Glover v. Tuck, 24 Wend. 153; Martin v. Williams, 17 Johns. 330; People v. Russell, 4 id. 570.

51 Ogdensburg Bank v. Paige, 2 Code R. 75.

52 Loomis v. Youle, 1 Minn. 177; Bishop v. Edmiston, 16 Abb. Pr. 466; School District v. Pratt, 17 Iowa, 16; Henke v. Eureka Endowment Assn., 100 Cal. 429; Bremner v. Lavitt, 109 id. 130; Marix v. Stevens, 10 Col. 261.

53 Byington v. Robertson, 17 Iowa, 562; Morse v. Gilman, 16 Wis. 504; Chesbrough v. New York & Erie R. R. Co., 13 How. Pr. 557; Graham v. Camman, id. 360; People ex rel. Crane v. Ryder, 12 N. Y. 433; Cramer v. Oppenstein, 16 Col. 504. What a demurrer to a bill in equity is, and why it can not be sustained where the facts, as stated on the face of the bill, entitle plaintiffs to relief, see Carroll v. Carroll, 11 Barb. 293; Otis v. Spencer, 8 How. Pr. 177; Union M. I. Co. v. Osgood, 1 Duer, 707; id. 243; see Griffing v. Gigg, 2 Black, 519; Grain v. Aldrich, 38 Cal. 514; 99 Am. Dec. 423; White V. Lyons, 42 Cal. 279.

54 Consult Village of Warren v. Phelps, 30 Barb. 646; Watson v. Husson, 1 Duer, 242; Spies v. Accessory Trans. Co., 5 id. 663; Roeder v. Ormsby, 13 Abb. Pr. 334; Seeley v. Engell, 13 N. Y. 542; Smith v. Greenin, 2 Sandf. 702; Richards v. Edick, 17 Barb. 261; Hammond v. Hudson River Iron & Machine Co., 20 id. 386; Lee Bank v. Kitching, 11 Abb. Pr. 435; see Anon., id. 231.

55 Brown v. Richardson, 20 N. Y. 474; Zabriskie v. Smith, 3 Kern. 330; Prindle v. Caruthers, 15 N. Y. 431; Judah v. Vincennes University, 23 Ind. 273; Milliken v. Tel. Co., 110 N. Y. 403; Marie v. Garrison, 83 id. 14.

56 Chamberlin v. Kaylor, 2 E. D. Smith, 134. 57 Nelson v. Highland, 13 Cal. 74.

that it does not show the amount of damages. The amount of damages is never the subject of demurrer.58 A demurrer does not raise the objection that the complaint does not show a cause of action for so large a sum as that demanded. Though it seems the demurrer in such case is not frivolous.5 In an action for the breach of a contract, the want of any averment of special damage can not be reached by a demurrer. Such averment is only necessary where the right of action itself depends upon the special injury received. For the breach of contract an action lies, though no actual damage be sustained.60

The objection that a deed was not signed and acknowledged by a married woman, as required by law, can not be raised by demurrer, where the complaint alleges that she signed and delivered such deed.61 Nor that a bond signed by two has but one seal, for the party who has not actually signed and sealed the bond may specifically plead non est factum, under oath;62 although such plea would not avail under the California decisions. A demurrer to evidence is not a good plea to a bill in equity on the ground of its extending beyond the allegations contained in the bill.63 So the insertion of interrogatories in a complaint, after the mode of a bill of discovery, is not a ground for demurrer.64 It can not be objected on demurrer to a declaration, alleging fraudulent misrepresentations, that the representations were made as a matter of opinion.65 A demurrer to a bill which contains allegations of fraud and strong circumstances of equity must be overruled. In such case the defendant must answer to the fraud.66 Nor is the omission of pledges of prosecution in the complaint a ground for demurrer, they being mere matters of form.67 The want of

58 Pevey v. Sleight, 1 Wend. 518; Hecker v. DeGroot, 15 How. Pr. 314. A complaint which states a cause of action for nominal damages for breach of contract, is good on general demurrer. Jacobs Sultan Co. v. Mercantile Co., 17 Mont. 61.

59 Witherhead v. Allen, 28 Barb. 661.

60 McCarty v. Beach, 10 Cal. 461; Hewitt v. Mason, 24 How. Pr. 366; Sunnyside Land Co. v. Railway Co., 20 Oreg. 544.

61 Kays v. Phelan, 19 Cal. 128.

62 Smith v. Hart, 1 Mo. 273.

63 Blackburn v. Stannard, 5 L. R. 250.

64 Bank of British North America v. Suydam, 6 How. Pr. 379.

65 Whitton v. Goddard, 36 Vt. 730.

66 Burnley v. Town of Jeffersonville, 3 McLean, 336.

67 Baker v. Philips, 4 Johns. 190.