Hitchcock

Action for slander. Judgment for plaintiff, from which, and from an order denying a new trial, defendant appeals.

1. Appellant contends that the complaint does not state facts sufficient to constitute a cause of action. Respondent contends that this point cannot be heard here, because after appellant had demurred to the complaint on that ground in the court below he stipulated that the demurrer might be overruled, and defendant allowed to answer within a certain time. It is not necessary to determine what consequence would have followed if appellant had expressly stipulated that the complaint did state a cause of action; for it is evident that the stipulation in this case did not go to that extent, and, under any view of the law, did not estop appellant from relying, at any future stage of the case, under section 434 of the Code of Civil Procedure, on the alleged failure of the complaint to state sufficient facts.

But we think that the complaint does state facts sufficient to constitute a cause of action. The main objections made by the appellant to the sufficiency of the complaint are: 1. That there is no distinct averment that plaintiff was an unmarried woman, and therefore…