DE WITT et al. v. PORTER

DE WITT et al. v. PORTER. A complaint, stating that whereas said defendant was justly indebted to plaintiffs in the sum of three thousand dollars for money paid, laid out, and expended, for the use and benefit of said defendant, and at his special instance and request, to-wit: at, etc. and on the 1st day of April, 1857, and in the sum of three thousand dollars, for money found to be due from the defendant to the plaintiffs on an account then stated between them; and the said defendant being so indebted to the plaintiffs afterwards, to-wit: on the day and year aforesaid, at the place aforesaid, undertook and faithfully promised the plaintiffs to pay the same, etc. and that said sum is due and unpaid, sufficiently states a cause of action. Appeal from the Twelfth District. Complaint averred as in syllabus. Defendant demurred: 1. That the complaint did not state facts sufficient to constitute a cause of action. 2. That several causes of action were improperly united, without being separately stated. Demurrer overruled, with leave to answer on payment of costs. Defendant excepted, failed to pay the costs, and final judgment was entered for plaintiffs. Defendant appeals. Stanly & Kayes, for Appellant, cited 1 Chitty, 337, 397; 4 Cal. 294; Archibald’s Civil Pleading, 294; Porter v. Hermann, 8 Cal. 619; 13 Johns. 485; 1 Greenleaf Ev. Sec. 126; 3 Meeson & Wels. 606; 7 Barn. & Cress, 103, to the points that the complaint contained two counts, neither of which was sufficient in itself; and that this being so, the pleader could not correct them so as to make one aid the other. To the point, that the Court could not impose costs, as a condition of answering, counsel cited Pratice Act, Sec. 67; Section 28 of an Act concerning Courts of Justice, Comp. Laws, 742. S. M. Bowman, for Respondent. [MAJORITY — Terry, C. J. delivered the opinion of the Court] Terry, C. J. delivered the opinion of the Court Baldwin, J. concurring. The complaint in this cause sufficiently states a cause of action for money ascertained to he due, upon a statement of accounts, which, it is averred, defendant promised to pay. The demurrer was properly overruled. It clearly appears, from the record, that the appeal is without merit. The judgment is, therefore, affirmed, with fifteen per cent, damages and costs.