The facts, however, should be stated from which such conclusions of law arise. The Code rule as to a statement of fact, is that such statement constituting the cause of action must be in ordinary and concise language. A plaintiff must allege in his complaint that he has sustained damages in order to recover a judgment for damages.2 25 Damages which are the natural and necessary consequence of the wrong complained of, may be alleged in a general way; but when the law does not necessarily imply that the plaintiff sustained damage by the act complained of, the resulting damage should be shown with particularity.26 The plaintiff should state in his complaint a demand for the relief which he claims; and if the recovery of money or damages be demanded the amount thereof must be stated.27 In an action to recover the possession of personal property, the plaintiff in his prayer for relief, may demand judgment for the possession of the property, or the value thereof, in case a delivery cannot be had, and damages for the detention. If the property has been delivered to the plaintiff in proceedings under the provisional remedy of claim and delivery, the defendant in his answer may demand judgment for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the property.2 28 "29 In actions in equity the plaintiff should demand the specific relief to which he claims he is entitled, and, as a general rule, it is advisable, after such demand for specific relief, to demand general relief, that is "for such other and further relief as the equity of the case may warrant. If there be no answer to the complaint the relief granted to the plaintiff cannot exceed that which he shall have demanded in his conplaint, but if there be an answer to the complaint the court may grant to the plaintiff any relief which is consistent with the case made by the complaint and embraced within the issue.30 25. Bohall v. Diller, 41 Cal. 532. 30. Code of Civil Procedure, Sec. 580. The names of the defendants in an action should be stared correctly. The middle initial letter of a person's name is in no part of his name.3 31 law A mistake in the name of a party to an action in a pleading may be corrected by leave of the court. 32 If the plaintiff be ignorant of the name of a defendant he must state that fact in the complaint, and may designate such defendant in the pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.33 When such defendant is served with the summons he must appear in the action, otherwise his default may be entered for his failure so to appear.* 34 Under the Code system of pleading it is not necessary to set forth in a pleading the items of the account therein alleged, but there must be delivered to the adverse party within five days after a demand in writing therefor, a copy of the account or the party pleading such account will be precluded from giving evidence thereof, and if the account so delivered be too general or is defective in any particular, the court or judge may order a further account to be delivered. (a). When such account or bill of particulars has been delivered, the plaintiff who intends to preclude his adversary from proving an account on the ground that he has not complied with a demand or order for the particulars of such account, should apply to the court for such an order before the trial. (b). It is only where a party has failed or refused to deliver to the adverse party on demand a copy of his account that the latter is entitled to an order that the former be precluded from giving evidence of such account in support of his complaint.35 1 The plaintiff may on the trial, explain the items of the bill of particulars, or of the copy of the account, or the error, if any, therein.36 In pleading a judgment or other determination of a court, officer, or board, it is not necessary to state facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made; and if such allegation be controverted, the party pleading must establish on the trial the facts conferring jurisdiction.37 A party to an action wishing to avail himself of the provisions of this section in respect to pleading such judgment or other determination, should comply strictly with the terms of the section as to such pleading.3 38 In pleading the performance of conditions precedent in a contract it is not necessary to state the facts showing such performance, but it may be stated generally, that the party duly performed all the conditions on his part, and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance.39 The provisions of this section as to pleading the performance of conditions precedent do not include the pleading of a condition precedent prescribed by statute 40 and it applies only to the pleading of the performance of a condition precedent expressed in a contract.41 If the conditon precedent be not in a contract, but is prescribed by a statute, the facts showing the performance of such condition precedent must, as a general rule, be pleaded.42 In an action on a contract in which there are mutual and dependent conditions, neither party can maintain the action without the performance, or an offer to perform on his part, the conditions of the contract; and this must be shown in the pleading of the party.43 If the offer to perform be in writing as provided in section 1496 of the Civil Code, an allegation by a party to a con 36. Graham v. Harmon, 84 Cal. 181, 184. 37. Code of Civil Procedure, Sec. 456. 38. Young v. Wright, 52 Cal. 407, 410. 39. Code of Civil Procedure, Sec. 457. 40. Rhoda v. Alameda County, 52 Cal. 350. 41. Bliss Code Pleading, Sec. 302. 42. Stephens on Pleadings, 334. 43. Hill v. Grigsby, 35 Cal. 656. 7 tract, of such offer in writing to perform is sufficient, unless the other party signified his acceptance of such offer.44 Under the Code system of pleading the statute of limitations may be pleaded by stating generally that the cause of action is barred by the provisions of section (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure, but, if such allegation be controverted, the party pleading must establish on the trial, the facts showing that the cause of action is so barred.45 In pleading a private statute or a right derived therefrom, it is sufficient to refer to such statute by its title and the day of its passage.46 It is not necessary to state in the complaint in an action for libel or slander, any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it is sufficient to state generally that the same was published or spoken concerning the plaintiff;47 and in such action the defendant in his answer may allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages.48 By the provisions of said section 460, what was called in common law pleadings in an action for libel or slander the inducement and the colloquium may be omitted from the pleading.49 Under the Code system of pleading every material allegation of the complaint not controverted by the answer must, for the purposes of the action, be taken as true; the statement of any new matter in the answer in voidance or constituting a defense or counter claim, must on the trial, be deemed controverted by the opposite party.50 A material allegation in a pleading is one essential to the 44. Peckham v. Stewart, 97 Cal. 147. claim or defense, and which could not be stricken from the pleading without leaving it insufficient.51 The plaintiff and the defendant respectively may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer.52 Should the plaintiff wish to have the answer verified, the complaint must be verified as provided in section 446 of the Code of Civil Procedure. When the complaint is verified, or if the state, or an officer of the state in his official capacity, is plaintiff, the answer must be verified, unless an admission of the truth of the complaint might subject the party to a criminal prosecution, or unless an officer of the state in his official capacity is defendant.53 51. Code of Civil Procedure, Sec. 463. |