Smith v. Richmond

15 Cal. 501

• Court: California Supreme Court
• Decided: July 1, 1860
• Status: Published

Opinion

Baldwin, J. delivered the opinion of the Court

Field, C. J. concurring.

The complaint in this case does not distinctly, if at all, count on two causes of action. The whole matter of the complaint seems to be blended in one statement. If the complaint was intended to set up two causes of action, this intent was not distinctly manifested by the form of the complaint, as it should have been.

It is true, the complaint does not aver that the defendant was discharged in bankruptcy; it says he claimed to be, but in the next sentence it avers that after his discharge he promised, etc.; and we are inclined to think that the proper construction is that the gravamen of the action was designed to be the promise—the previous indebtedness being averred as matter of inducement, or as indicating the extent and character of the engagement.

The defendant might very well have been taken by surprise under these circumstances, and supposed it not necessary to introduce proof of his discharge.

Under these circumstances, we cannot revise the discretion of the Court below in granting a new trial, there being no palpable abuse of it.

Order affirmed.