Buell v.Dodge

Citations

• 79 Cal. 208
• 21 P. 735
• 1889 Cal. LEXIS 700

Syllabus

<p>Pleading—Breach of Contract—Demurrer—Misjoinder of Causes of Action and of Defendants. — The complaint alleged, in effect, that the defendant Moss individually held a mortgage upon certain land of the plaintiff, and that the plaintiff was also indebted to the defendant Dodge, individually, upon a promissory note; that on February 10, 1879, a written agreement was made between the plaintiff and the defendants, by which the plaintiff was to remove all encumbrances upon the land except said mortgage, and convey the land to Dodge for twelve thousand dollars; that Moss was to release his mortgage, and Dodge was to credit said twelve thousand dollars upon the note against the plaintiff; that three days after the agreement was signed, the defendants notified the. plaintiff that they would not perform it; that on the sixth day of March following, Dodge commenced an action against the plaintiff on the note, and. attached a large amount of personal property belonging to him; that afterwards Moss foreclosed his mortgage on the land, and that the same did not sell for more than sufficient to satisfy the mortgage and the costs of foreclosure. The complaint further averred that the plaintiff had been damaged by the attachment in the sum of fifty thousand dollars, and by the foreclosure in the sum of twelve thousand dollars, for the aggregate of which sums judgment was asked against both defendants. Held, that the complaint was demurrable: 1. Because it did not sufficiently state the manner in which the plaintiff was damaged, or that he had performed his part of the agreement; and 2. Because of a misjoinder of causes of action and of parties defendant.</p>