Bliss

This is an appeal from a judgment for plaintiff upon the pleadings.

The action is for rent alleged to be due upon an in *44 denture of lease. It is contended that the complaint does not sufficiently aver demand and nonpayment. The allegation is: “That the plaintiff has demanded the payment of said sum, but to pay the same, or any part thereof, the defendant refused, and still refuses.” A general demurrer was interposed, which apparently was never passed upon, but was waived by answering. The objection not having been taken by special demurrer, the pleading must now be held sufficient. (Grant v. Scheerin, 84 Cal. 197 .)

The defendant answered, admitting the demand of plaintiff, but setting up, as a partial defense, a claim against plaintiff’s wife.

The answer avers that in all the transactions set forth in the complaint, plaintiff acted solely and wholly as the agent of Martha S. Bliss, his wife; that the present action is prosecuted by him as agent of said Martha S. Bliss, and for her sole and exclusive use, benefit, and behalf. The answer then proceeds to aver a demand against said Martha S. Bliss, which existed at the time the action was commenced, and asks that such demand…

I concur in the judgment. Assuming the matters alleged in the answer to be true, it was error to give a judgment in favor of plaintiff for the full amount demanded in the complaint.