N. H. DEVELOPMENT CO. v. CALIFORNIA LANDS, Inc., et al.*
The second amended complaint in this action, to which the trial court sustained defendants' demurrer without leave to amend, is entitled ‘For Trespass and Damage to Property’ and contains ten counts. The first count, which purports to set forth a cause of action against the defendant bank, alleges (par. II) the ownership by plaintiff of certain described lands constituting the Rancho Golden, upon which (par. IIIA), prior to October 5, 1940, plaintiff raised oranges, olives and lemons; that (par. IV) from about October 26, 1939, said Rancho was encumbered by a deed of trust to secure two promissory notes executed by plaintiff to Bank of America, one of said notes being payable in annual installments, final payments on both being due January 2, 1943; that (par. VI) about October 5, 1940, the said bank undertook to supervise and manage the orchard on said Rancho for the purpose of additional security to it for a temporary advance made by the bank to plaintiff; that on February 20, 1941, said advance was paid to the bank and on said date plaintiff was not delinquent upon any obligation due to the bank, but that the bank continued its supervision and management until the fall of 1943; that between February 20, 1941, and November 1, 1943, said bank negligently managed the orchards in that it cut off the skirts of 7383 orange trees, failed to fertilize or irrigate properly or to remove weeds, with the result that (par.VII) the crops were reduced to the extent of some 10,438 boxes of oranges which were of a reasonable value of $10,438; that (par.VIII) the bank also failed properly to care for olive trees growing upon the Rancho, with the result that the crop which said trees were capable of producing had been reduced to plaintiff's damage in the sum of $4300; also (par. IX) that the said bank pulled out and destroyed all of the orange trees growing upon 45 acres of the Rancho, removing both good and bad trees in solid blocks, thus destroying 2622 good production trees which would have produced 22,998 boxes of oranges of a value of $22,998, and which trees could only be replaced at a cost of $17,366. Judgment was prayed against said bank on its first cause of action in the sum of $55,102.
The second count which is alleged to set forth a cause of action against Capital Company (par. I) incorporates by reference paragraphs I, II, IIIA and V of the first cause and then alleges (par. III) that about October 5, 1940, defendant California Lands, Incorporated, commenced to manage the orchards on plaintiff's lands. Acts similar to those ascribed to the bank in the first count are then alleged to have been committed by California Lands, Incorporated, with the same results to plaintiff as those alleged in the first count, a judgment for $55,102 being prayed on this count.
The third cause of action, directed against the bank only, also incorporates allegations of the first, then alleges (par. II) that about October 5, 1940, it was unable to meet the expenses of irrigation of the Rancho and secured certain advances from the bank until the proceeds of the season's crops came in; that at defendant's request it executed a document referred to as the Authorization, which is made a part of this count. Said authorization is entitled ‘Authorization of Trustor or Mortgagor,’ and reads:
‘To: Bank of America National Trust and Savings Association and/or California Lands Inc.
‘I, the Trustor or Mortgagor named in that certain Deed of Trust or Mortgage (Trustor or Mortgagor, shall include the successor in interest of either and when contest requires shall include the plural number), hereinafter called lien instrument dated Oct. 26, 1939, and recorded Nov. 4, 1939, in Volume 238, at Page 69 of Official Records of Butte County, State of California, hereby inform you and represent that I am, and have been financially or otherwise unable and will not be able to properly care for, farm, or operate the premises subject to said lien instrument or harvest crops therefrom. Therefore, in order that the security underlying my indebtness to said Bank may be protected, you are hereby requested to take over the supervision and management of the said premises, and in consideration of your doing so, the undersigned does hereby consent to your entering said premises, and at your absolute and uncontrolled discretion you are authorized with reference to said property, but not required:
‘To lease, either the whole or any part or parts, for such period and upon such terms as you may elect;
‘To operate, and farm either the whole or any part or parts and to the extent that, and so long as, you may elect;
‘To harvest and sell or otherwise dispose of any and all crops produced on the premises;
‘To remove any trees, vines, or other planting which in your discretion may be unprofitable to retain;
‘To plant or replant any of said property to trees, vines, or other plantings;
‘To repair or protect any buildings or other improvements; and
‘To perform any and all other acts as are provided in the said lien instrument to the extent that, and as long as you, in your discretion, may elect.
‘Any advances or expenditures made by you as herein authorized are to be considered as advances under said lien instrument and to be secured thereby, and any returns or income derived hereunder prior to a sale of said property pursuant to the terms of said lien instrument are to be credited to my indebtedness secured thereby.
‘You are authorized to use or sell or otherwise dispose of, and the undersigned hereby releases all claim to, any and all crops and feed already harvested and located on said premises, and all crops and feed now growing or hereafter produced on the premises and to any rental due or to become due, or other income hereafter derived therefrom, and does further release you and both of you, from any and all claims by reason of any act of commission or omission performed pursuant thereto, it being the intent hereof to give you immediate, full and absolute control of the premises secured by said lien instrument.
‘You are granted hereby for the use and/or operation of said premises the right to the exclusive use and control of the chattels, personal property and farming equipment located on said premises, a list of which said chattels, personal property and farming equipment is attached hereto and made a part hereof, without liability to the undersigned for rental for the use thereof, or repair the same.
‘In the event Notice of Default and of Election to Sell has been or may be recorded, as provided in said lien instrument, any advances or expenditures made or income derived hereunder, or the performance of any of the acts herein authorized, shall in no way be construed as a waiver of said Notice of Default and Election to Sell, but such notice shall remain effective for all purposes.
‘If and when this authorization is acted upon by Bank of America National Trust and Savings Association and/or California Lands Inc., then and in that event the terms and provisions hereof shall be irrevocable on the part of the undersigned, and shall remain in full force and effect until the lien instrument is extinguished.
‘Dated at Oroville, Calif., October 5th, 1940
‘N. H. Development Co.
‘By: Robert W. Hodgson, sec.-Treas.
‘Noel Newton, Pres.’
It is further alleged, however, that prior to the making of any advance by the bank or to any acts under the authorization the bank and plaintiff orally agreed that plaintiff would consent to the operation by the bank only until the temporary advances were repaid and until plaintiff was not in default under the trust deeds held by the bank; that the bank made the advances and assumed operation, management and supervision of the orchards, and ‘from on or about October 5, 1940, to on or about Nov. 1, 1943, the defendant bank operated, managed and supervised the orchards upon Rancho Golden and for that purpose entered upon the plaintiff's lands from time to time’; that about February 20, 1941, plaintiff paid to the bank all sums then due and owing and was not in default under the trust deeds; that about April 10, 1941, the bank entered the orchard ‘for no purpose connected with the operation, management and supervision’ and pulled out and destroyed the orange trees upon 45 acres, and without plaintiff's knowledge or consent pulled out 2622 productive trees, and that one of the purposes of the bank in so doing was to cause plaintiff to default under the trust deeds so that defendant could purchase the lands at foreclosure sale for less than their reasonable market value; that the acts of the bank were done maliciously for the purpose of injuring plaintiff; that the detriment suffered by plaintiff was $131,000 for which, under section 3346 of the Civil Code, plaintiff was entitled to recover treble said amount, namely, $393,300.
The fourth cause of action, alleged to be against the Capital Company, incorporates portions of the first count, and paragraph II of the second. It then alleges that about October 5, 1940, in order to secure a temporary advance from the bank, plaintiff consented that California Lands, Inc., should act as plaintiff's agent in the operation of the Rancho orchards, and that thereafter and until November 1, 1943, California Lands, Inc., or its successor, the Capital Company, operated same as plaintiff's agaent; that about April 10, 1941, under orders from the bank, defendant California Lands, Inc., pulled out the 2622 trees without plaintiff's knowledge or consent.
The fifth count, against the bank, also incorporates portions of the preceding counts and then alleges that plaintiff was lawfully in possession of the Rancho on April 10, 1941, and that on said date said defendant entered thereon and without plaintiff's consent destroyed the 2622 trees and thus became liable for treble damages.
The sixth count makes similar allegations against the Capital Company.
The seventh count, against the bank, realleges the paragraphs of the fifth, but alleges that the acts were done intentionally and maliciously.
The eighth count is directed against the Capital Company and follows the allegations of the sixth count, alleging in addition that the acts were done maliciously.
The ninth count, against the bank, alleges the portions of the third regarding the execution of the Authorization and its modification by oral agreement, and then alleges that afterthe payment of all advances made by the bank, and when plaintiff was not in default under any trust deed held by the bank, plaintiff notified the bank that its authority to operate the orchards had terminated, and demanded that operation be returned to plaintiff; that on February 20, 1941, the bank's authority terminated and at all times thereafter plaintiff was in possession; but that thereafter, and without plaintiff's knowledge or consent, the bank continued to enter upon the orchards, and did the wrongful acts previously complained about.
The tenth count is directed against defendants Cooper and Humphrey, and alleges that Cooper, at Humphrey's direction, and while the lands were in plaintiff's possession, entered the lands without plaintiff's leave, and cut down the 2622 orange trees to plaintiff's damage in the amount of $131,000.
To this complaint demurrers both general and special were interposed, including the bar of the statute of limitations. The trial court in sustaining the demurrer rendered a written opinion in which it stated, in substance, that the ‘Authorization,’ which had been pleaded in the original complaint, and was also set up in the third and ninth counts of the second amended complaint as having been executed by plaintiff, authorized defendants Bank of America and/or California Lands, Inc., to operate the Rancho until all of the secured indebtedness had been paid; that though plaintiff ignores the existence of the Authorization in some of the counts, and also alleges that it was modified by an oral agreement to the effect that the management of the property by the bank was to be terminated and returned to plaintiff when the temporary advances had been paid by plaintiff and that such temporary advances had been paid off before the commission of the acts for which plaintiff seeks damages, that the written instrument could not be modified by an oral agreement, that the oral agreement was therefore void, and that, as the written document was sufficient to authorize the acts alleged to have been committed by defendants, plaintiff could not state a cause of action other than one for waste by a mortgagee in possession, which plaintiff had failed to do.
The first question which calls for an answer is whether a plaintiff which has pleaded in a prior complaint and in certain of the counts of its amended complaint the execution and delivery of a written document by which it has not only authorized the doing of the acts for which it seeks damages, but has therein released defendants from all claims by reason of any act of omission or commission performed thereunder and his provided that when acted upon by defendant the terms thereof shall become irrevocable, may be permitted to contend that, because in certain counts of his amended complaint the existence of such written document is ignored, and in others it is set forth but the significant provisions thereof are alleged to have been modified by an oral agreement, the counts which ignore the writing state valid causes of action. In short, if it is apparent from the allegations in a prior pleading or in certain counts of an amended pleading that plaintiff cannot recover, are counts in such amended complaint subject to general demurrer for such reason even though they may be technically sufficient in themselves to constitute a cause of action?
The answer to this query seems to be furnished by the several decisions of the courts of this state. In Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 716, 128 P.2d 522, 524, 141 A.L.R. 1358, the court said: ‘If any verified pleading contains an allegation which renders a complaint vulnerable, the defect cannot be cured simply by omitting the allegation, without explanation, in a later pleading.’ Williamson v. Joyce, 137 Cal. 151, 69 P. 980, was there cited. In the latter case, brought to enforce a lien for sewer work on Joyce's property, it was alleged that the warrant, diagram and assessment were recorded on March 17, 1898. It thus appeared that the action was barred by the statute of limitations, and on this ground a demurrer was sustained. Plaintiff, in an amended complaint, omitted the date of the recordation. Demurrer to such complaint was sustained without leave to amend. The Suprme Court affirmed the judgment which followed, saying that in the absence of a showing to the contrary, the court was justified in assuming that the date of recordation was correctly given in the original complaint, and in thus inferring that the complaint could not be truthfully amended so as to obviate the objection.
In Nett v. Holmes, 25 Cal.2d 447, 469, 154 P.2d 854, Mr. Justice Edmonds, in his concurring opinions, stated the rule of the foregoing cases, saying that the facts stated in each of the four pleadings filed in the suit might be considered in determining whether the bar of the statute of limitations was applicable to two specified causes of action.
In Fox Chicago R. Corporation v. Zukor's Dresses, 50 Cal.App.2d 129, 135, 122 P.2d 705, the court said that in construing the allegations of an amended complaint it was proper for the trial court and the appellate court to refer to an exhibit attached to a former pleading which exhibit plaintiff had declined to attach to the amended complaint—that in declining to attach such exhibit to the amended complaint plaintiff had not obviated the effect of the exact language of the writing.
In Zakaessian v. Zakaessian, 70 Cal.App.2d 721, 724, 161 P.2d 677 (hearing in Supreme Court denied), it was held that an essential defect in a complaint alleging the creation of a resulting trust and a vesting of legal title in plaintiff by a designated deed of conveyance, could not be cured simply by omitting any mention of such deed in subsequent statements of the same cause of action, without explanation, once it had been disclosed. In Tognazzi v. Wilhelm, 6 Cal.2d 123, 127, 56 P.2d 1227, 1229, it is said: ‘The rule which warranted the court below in refusing leave to file the proposed amended complaint, and which finds expression in the decisions of this state, is well expressed in 31 Cyc. 422, wherein it is declared: ‘As a general rule a party will not be allowed to file an amendment contradicting an admission made in his original pleadings. If it be proper in any case, it must be upon very satisfactory evidence that the party has been deceived or misled, or that his pleading was put in under a clear mistake as to the facts.’ To the same effect see Bank of Woodland v. Heron, 122 Cal. 107, 109, 110, 54 P. 537; Harney v. Corcoran, 60 Cal. 314; Spanagel v. Reay, 47 Cal. 608; Cox v. Rosenberg, 58 Cal.App. 181, 188, 208 P. 377; 49 C.J. 486, § 634.' (Italics added.)
Appellant attempts to distinguish the foregoing cases on the ground that while the rule therein stated is applicable where complaints are verified, it is inapplicable where, as here, the complaints are unverified. We see no reason for making such a distinction in this case. Plaintiff has, itself, set up, not once but several times, the execution of the Authorization, and does not anywhere deny its execution and delivery, or explain why it is omitted from certain counts. We think it was proper for the trial court to consider it as an existing document; and that plaintiff should not be permitted, by the mere expedient of filing unverified complaints, to say that the courts must disregard what it has alleged in its original complaint and in some counts of the complaint as amended and must hold that plaintiff has stated a cause of action when it is obvious that it has merely omitted that which both know to exist.
Turning now to the allegations of the first count of plaintiff's second amended complaint, it is to be noted that no mention is made therein of the Authorization, it being alleged merely that on October 5, 1940, the bank undertook to manage the Rancho orchard ‘for the purpose of additional security to said Bank for a temporary advance’; that said advance was paid about February 20, 1941, and plaintiff was not delinquent under the deeds of trust; but that the bank continued its management until the fall of 1943, and that while said bank was managing the orchards it committed the acts for which plaintiff claims damages.
In the first count of the original complaint—which was entitled ‘Trespass'—it was alleged that about October 6, 1940, plaintiff executed and delivered the Authorization to the bank, the writing being made a part thereof as an exhibit. It was then alleged that at the time the Authorization was delivered to the branch manager of the bank, it was delivered expressly upon the condition that all authority therein conferred would cease upon the repayment of said adaance provided no default existed upon said notes, and that ‘it was orally agreed at the time of said authorization that when any advances made thereafter by the said Bank had been repaid provided no default upon said notes existed, that the supervision and management of the Rancho Golden would be returned to the plaintiff’; that the oral agreement and conditions made at the time of delivery of the Authorization modified its terms; that after the delivery of the Authorization the bank advanced funds, and that ‘forthwith after the execution of said authorization, acting under and pursuant to said authorization,’ California Lands, Inc., proceeded to operate the Rancho ‘as the agent of plaintiff.’ Payment of advances made by the bank on February 20, 1941, was then alleged, that a demand was made for return of the lands to plaintiff, but that about April 10, 1941, California Lands, Inc., entered upon the lands without the knowledge or consent of plaintiff and committed the acts for which damages are prayed.
It thus appears that the execution and delivery of the Authorization by plaintiff, and the subsequent operation of the orchards by California Lands, Inc., were alleged in the first count of the original complaint, but that, without any explanation or reasons given, all reference to the writing was omitted from the first count of the second amended complaint. Under the authorities above cited the trial court was justified in considering the writing in determining whether the first count of the second amended complaint stated a cause of action, and in sustaining defendant's demurrer thereto, if the allegations in the original pleading rendered the amended one ‘vulnerable.’ In view of the broad authority given by the Authorization it is apparent that it did render the amended complaint vulnerable, since on its face, it authorized the doing of the acts of which plaintiff complains, provided that when acted upon by the bank it should become irrevocable until the lien instrument (the trust deed) were extinguished and released the bank and California Lands, Inc., from any and all claims by reason of any acts performed by them.
Turning next to the second count in the second amended complaint, alleged to be against the defendant Capital Company, it alleges that Capital Company, at some time prior to January 1, 1943, succeeded to the business of defendant California Lands, Inc., and agreed to assume all of its obligations and liabilities, and thereby became liable for the acts of California Lands, Inc. It then alleges the California Lands, Inc., ‘commenced to supervise and manage’ the orchards upon the Rancho, about October, 5, 1940, and thereafter negligently operated and managed same by committing the acts of omission and commission alleged against the bank in the first count. In that count no reference is made to the Authorization which was addressed to California Lands, Inc., as well as the bank. Therefore, this count is vulnerable for the same reasons that the first is assailable.
The third cause of action, which purports to be against the bank, follows in substance the allegations of count one of the original complaint in that it sets forth the execution and delivery of the Authorization but alleges its modification by oral agreement, the payment to the bank of all advances and amounts due February 21, 1941, under the deeds of trust, the entry of the bank upon the orchard on April 10, 1941, and the doing maliciously of the acts of destruction of the orange trees, thus inflicting damages for which plaintiff claims treble damages under Civil Code section 3346. This count presents the additional question whether, in view of the Authorization, plaintiff states a cause of action by averring its modification by oral agreement in the manner stated, or whether it is subject to general demurrer on the ground that the writing could not, validly, be so modified.
Respondent contends that such attempt on the part of plaintiff to vary the terms of the writing by an oral agreement violates the rule provided by Civil Code section 1625, that plaintiff's allegations regarding such a modification cannot be relied upon in the pleading to nullify the statements in the writing which gave the bank and California Lands, Inc., authority to perform the acts of which plaintiff complains, as long as they might elect, which released them from all claims by reason of any act performed pursuant thereto, and was rendered irrevocable until the lien instrument therein mentioned was extinguished.
Section 1625 of the Civil Code provides: ‘The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.’ And section 1856 of the Code of Civil Procedure reads: ‘When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: 1. Where a mistake or imperfection of the writing is put in issue by the pleadings; 2. Where the validity of the agreement is the fact in dispute.’
It is stated in 6 Cal.Jur., pp. 261, 262: ‘As a general rule, preliminary negotiations leading up to a contract, and not embodied in it constitute no part of the final binding contract, and its legal effect cannot be changed by reference to them. When the terms of an agreement have been reduced to writing, no evidence of other negotiations or terms is admissible. It must be presumed, in the absence of fraud, accident or mistake, that the entire negotiations of the parties are included in the contract as executed. The written contract must control as to all the terms expressed in it; and if there is any difference between it and the oral agreement, the document must be referred to in order to determine the rights of the parties.’ It is also stated therein at page 264 that: ‘The rule that prior or contemporaneous negotiations cannot be used to contradict, add to, or vary, a written contract, applies not only to the letter of the document, but also to its legal effect.’
In Pacific States Securities Co. v. Steiner, 192 Cal. 376, 377, 220 P. 304, 305, it was contended that the purchase price of an automobile purchased under a written contract had been reduced by an oral agreement. The court said that the effect of the oral agreement was directly to contradict the express terms of the written contract, and that ‘A written contract cannot be modified by a contemporaneous oral agreement in directing conflict therewith between the same parties (Civ.Code § 1625; Code of Civ.Proc., § 1856)’; that ‘This is a rule of substantive law. Germain Fruit Co. v. J. R. Armsby Co., 153 Cal. 585, 96 P. 319; Dollar v. International Banking Corp., 13 Cal.App. 331, 343, 109 P. 499; Harding v. Robinson, 175 Cal. 534, 540, 166 P. 808.’
In Bank of America, etc., Association v. Pendergrass, 4 Cal.2d 258, 264, 48 P.2d 659, it was again stated that the rule set forth in the above mentioned code sections is one of substantive law, as well as of evidence. Also see Lindemann v. Coryell, 59 Cal.App. 788, 791, 212 P. 47; Harding v. Robinson, 175 Cal. 534, 540, 166 P. 808.
In Urban v. Yoakum, 89 Cal.App. 202, 208, 264 P. 493, 495, where a writing provided for dates of payment, there was testimony that, in conversations both before and after the signing of a writing it had been agreed that payments could be made upon receiving thirty days' notice, which statement was in conflict with the terms of the writing. The trial court struck out the testimony and the appellate court said: ‘As to the conversation held before the contract was signed, it was merged in the contract. Civ.Code, § 1625. As to the conversation held after the contract was signed, it could alter the written instrument. Civ.Code, § 1698.’
In Fisk v. Casey, 119 Cal. 643, 645, 51 P. 1077, on appeal it was assigned as error that the trial court had refused defendant permission to amend his answer by alleging, as a separate defense, that at the time of the execution of a promissory note made by defendant, plaintiff agreed to pay all taxes thereafter to be assessed upon the land, including taxes on the mortgage. The court held there was no error; that the promissory note was a written agreement to pay interest, which could not be varied by proof of this averment.
In Ventura, etc., Ry. Co. v. Hartman, 116 Cal. 260, 48 P. 65, 66, an action brought to compel the payment by defendant of a stock assessment, the complaint contained a copy of defendant's subscription. In this complaint plaintiff alleged that defendant had thereby agreed to pay his subscription ‘when and as it might be demanded by said plaintiff.’ The court said that no such provision was contained in the subscription and such language in the complaint should be disregarded.
While as set forth in 6 Cal.Jur., pp. 264–268, §§ 166 and 167, there are exceptions to the parole evidence rule, the facts alleged do not bring plaintiff within any of such exceptions, and it is obvious that the alleged oral agreement is directly in conflict with the written one executed by plaintiff, which is complete and unambiguous as to the matters which plaintiff claims were changed by parol agreement. Plaintiff's third cause of action is predicated upon and dependent upon the alleged oral agreement, and since that agreement, as matter of substantive law, is invalid, it follows that plaintiff fails to state a cause of action in said count.
The fourth count, which is alleged to be against the Capital Company, incorporates portions of first and second counts including prior allegations of assumption by Capital Company of the liabilities of California Lands, Inc., then alleges that about October 5, 1940, in order to procure a temporary advance from the bank plaintiff consented that California Lands, Inc., should act as plaintiff's agent in the management of the orchard, and that California Lands and Capital Company operated and managed the orchards until November 1, 1943, as plaintiff's agent; that about April 10, 1941, California Lands, Inc., was instructed by the bank to destroy all of the orange trees on 45 acres, it being further alleged that said acts were done ‘wilfully’ by defendants justifying recovery of treble damages for the injuries inflicted. This cause of action, appellant states in its brief, was designed to afford relief to plaintiff in the event that it appeared from the evidence that California Lands was responsible for the alleged wrongful acts.
The fifth, sixth, seventh and eighth counts, appellant states, are simple causes of action for trespass or trespass on the case committed by the different defendants. All of said counts allege liability on the part of defendants for treble damages under sections 3346 of the Civil Code and section 733 of the Code of Civil Procedure.
The ninth cause of action again sets forth the execution of the Authorization, the alleged oral agreement, the assumption of operation by the bank, and, by incorporating by reference a portion of the third count, alleges that ‘from on or about October 5, 1940, to on or about November 1, 1943, the Bank operated, managed and supervised the orchards upon Rancho Golden and for that purpose entered upon the plaintiff's lands from time to time.’ Said ninth count further alleges that after payment of all advances to the bank and when plaintiff was not in default under any trust deed, it notified the bank that its authority to operate the property had ceased, and demanded that same be returned to plaintiff; that plaintiff was in possession on February 20, 1941, and at all times thereafter, but that the bank continued to enter upon the orchards, without plaintiff's knowledge or consent, and intentionally and maliciously caused California Lands, Inc., to destroy trees, etc. This ninth count differs from the third count in that the latter did not allege that under the oral agreement the authority of the bank to manage the orchards had terminated on February 20, 1941, as does the former; nor did the third count allege that plaintiff was in possession when the trees were pulled, though the ninth alleges both that plaintiff was in possession and that the bank continued to operate the lands until November 1, 1943.
It is apparent from the foregoing lengthy statement of the repetitious and extensive allegations of the foregoing counts of plaintiff's complaint that all of said causes of action are grounded upon the asserted oral amendment of the written Authorization; that the execution of the latter is nowhere denied, and that no imperfection or mistake in same is put in issue. Plaintiff has not attempted to set forth causes of action for any acts of omission or commission committed in connection with the management of the property under the Authorization, and since we conclude that the oral agreement was invalid as matter of substantive law, plaintiff has failed in any of such counts of its complaint to state a good cause of action in view of the provisions of the Authorization which it executed and delivered to defendants.
Regarding the tenth count which charges that on April 10, 1941, defendant Humphrey directed defendant Cooper to enter upon plaintiff's lands and to cut down orange trees and that Cooper, pursuant to aid direction, cut down 2622 of such trees, reference to the seventh count of plaintiff's original complaint shows that plaintiff therein alleged that Humphrey was the manager of the Oroville branch of defendant bank, and that he directed California Lands, Inc., to cut the trees. The eighth count of that complaint incorporated paragraphs I to XIV of the first count thereof—which paragraphs included the allegations regarding the execution and delivery of the Authorization—and then alleged that Humphrey, Cooper and California Lands, Inc., trespassed upon the lands and destroyed the 2622 orange trees. The original ninth cause of action, against Cooper alone, alleged that on or after February 20, 1941, Cooper undertook to manage the orchard, and that he cut off the skirts of the orange trees, failed to irrigate properly, etc. In its first amended complaint plaintiff also alleged that Humphrey was the manager of the bank's Oroville branch, and that Cooper was instructed by Humphrey to pull out the 2622 trees; also that Humphrey was acting within the scope of his authority in giving such order. It is thus apparent that in framing its tenth count plaintiff sought to avoid any infirmity growing out of the Authorization by omitting to allege, what it had previously revealed, that Humphrey was the manager of the Oroville branch of the bank, and that in directing Cooper he acted within the scope of his authority as such manager. These facts bring this count within the decisions hereinbefore cited. Also see Johnson v. Nolan, 105 Cal.App. 293, 294, 288 P. 78, where plaintiff sought to avoid the statute of limitations by omitting, in an amended complaint, the date of the acts for which damages were sought. The court there said: ‘In passing on the last demurrer the trial court, in the absence of a showing to the contrary, was justified in assuming that the date of the wrongful act was correctly set forth in the original complaint and to rule accordingly. Williamson v. Joyce, 137 Cal. 151, 152, 69 P. 980. Furthermore, the defendant's special demurrer was addressed to the date. If the date had been inserted, the plea of the statute was good. If the date was omitted, the special demurrer was good. The plaintiff may not complain in either event.’
While it is generally true that courts exercise liberality in permitting amendments to pleadings and are not disposed to be unduly critical of those inartificially drawn, where it appears that a complaint is framed rather for the purpose of avoiding demurrer than for the purpose of stating the true facts, and particularly where facts previously alleged, and also alleged in other counts of the same pleading show that a plaintiff cannot truthfully state a valid cause of action, defendants should not be forced to go to trial in such actions nor courts to entertain them.
The judgment is affirmed.
ADAMS, Presiding Justice.
THOMPSON, J., and LEMMON, Justice pro tem., concur.