Whelan v. Brickell

33 P. 396, 4 Cal. Unrep. 47, 1893 Cal. LEXIS 1007

Opinion

McFARLAND, J.

This case has been here in various forms, several times: Brickell v. Batchelder, 62 Cal. 623; Batchelder v. Brickell, 75 Cal. 373, 17 Pac. 441; Batchelder v. Baker, 79 Cal. 266, 21 Pac. 754; and Baker v. Brickell, 87 Cal. 329, 25 Pac. 489, 1067. The case at bar must be affirmed upon the authority of the case last above mentioned—87 Cal. 329, 25 Pac. 489, 1067. That case, it is true, was decided upon its merits, after a full trial, while in the ease at bar judgment was rendered for defendants upon the sustaining of a demurrer to the complaint. There is an effort here to give the case a somewhat different phase, but it readily appears upon the face of the complaint that the material facts stated are the same as those passed upon in Baker v. Brickell. After a careful consideration of the briefs of counsel for appellants, we are satisfied that the complaint does not state facts sufficient to constitute a cause of action, and we do.not think that further discussion of the case is necessary.

The judgment is affirmed.

We concur: De Haven, J.; Fitzgerald, J.