De La Guerra v. Newhall

Citations

• 55 Cal. 21

Syllabus

<p>Pleading—Assumpsit—Common Counts—Promise —Evidence—Variance— Immaterial Error.—The promise to pay, alleged in the common counts in assumpsit, was a mere conclusion of law from the facts stated; and, under the Code, in such cases, (as it is only required to state the facts) an express promise need not be alleged, and, if alleged, need not be proved. Accordingly—where the complaint alleged the pasturing of defendant’s cattle on the plaintiff’s land, and the value of the pasturage; and also alleged that the plaintiff expressly promised to pay what it was reasonably worth—held, that it was not necessary to prove an express promise; and held, further—there being no conflict in the evidence as to the pasturing of defendant’s cattle on the plaintiff’s land—that the admission of incompetent evidence as to an express promise could do no injury, and was, therefore, not ground for reversal.</p> <p>Former Judgment—Estoppel.—A judgment for defendants, in an action for the trespassing of defendants’ cattle on the plaintiff’s land, held not to bo a bar to a subsequent action for similar trespasses, occurring prior to those alleged in the former action.</p>