McCann v. Pennie

Citations

• 100 Cal. 547
• 35 P. 158
• 1893 Cal. LEXIS 832

Syllabus

<p>Pleading—General Demurrer.—Upon a general demurrer to a complaint, an objection going only to a part of the cause of action cannot be sustained.</p> <p>Estates of Deceased Persons—Action Upon Contract With Decedent— Performance in Foreign Country.—The fact that services to be performed under a contract made with a deceased person in his lifetime, were to be performed, or were performed in a foreign country, does not affect the right of the person rendering the services to maintain an action thereon in the courts of this state.</p> <p>Id.—Liability of Personal Representative of Decedent.—Where the contract of the deceased is of an executory nature, and his personal representative can fairly and sufficiently execute all the deceased could have done, he may do so and enforce the contract, and is bound to complete the contract, and if he does not, may be made to pay damages out of the estate.</p> <p>Id.—Presentation of Claim—Pleading—Demurrer.—A complaint upon a claim against the estate of a decedent is not demurrable for not alleging that the plaintiff presented his claim to the administrator within the time limited in the notice to creditors, if it does not show upon its face that it was not so presented, or that it was presented at a date after the time limited in the notice.</p> <p>Id.—Presentation of Claim Before Notice.—A claim may be presented before the notice to creditors is published, and such presentation is good.</p> <p>Id__Statute of Frauds—Pleading—Presumption.'—Where a contract is required to be in writing it is not necessary to allege in a pleading that it was in writing. If necessary to its validity, it will be presumed that it was in writing, and the bar of the statute must be pleaded in defense, unless the complaint shows upon its face that the contract is void under the statute.</p>