[Civ. No. 2257. First Appellate District.-October 30, 1917.]

PAUL MARTY, Appellant, v. HOWARD SOMERS, Respondent.

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NEGLIGENCE-ACTION FOR MALPRACTICE STATUTE OF LIMITATIONS.-A complaint in an action against a physician and surgeon alleging that defendant was employed by plaintiff to cure him of a certain disease, that defendant advised an operation, that it was performed, but was unsuccessful and left plaintiff in a worse condition than before, states a cause of action sounding in tort for damages for wrongful act or neglect, and not for breach of contract to effect a cure, and is governed by section 340, subdivision 3, of the Code of Civil Procedure, requiring the commencement of the action within one year.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John Hunt, Judge.

The facts are stated in the opinion of the court.

Devoto, Richardson & Devoto, for Appellant.

Stratton & Kaufman, and Wm. P. Hubbard, for Respondent.

THE COURT.-Defendant, being a physician and surgeon, was employed by plaintiff "to cure him of bladder trouble," which the complaint alleges he undertook to do. Thereafter defendant advised plaintiff that an operation was necessary in the treatment of the malady, and agreed with the plaintiff to perform the same for the sum of $250. Said operation was performed, and, according to the complaint, "was unsuccessful, and said defendant did not cure said plaintiff of his malady; that said operation left plaintiff in a worse condition; that plaintiff's urinary organs have become paralyzed and plaintiff has completely lost the use thereof; that plaintiff has suffered, and still suffers, great pain, and has become weakened in body and his physical health and constitution have been greatly impaired. That by reason of the premises, plaintiff has suffered damages in the sum of ten thousand dollars." The complaint prays judgment for said

sum.

The action was commenced more than one year after the performance of said operation and treatment, and the defendant demurred to the complaint, and pleaded subdivision 3 of section 340 of the Code of Civil Procedure in bar of the action. This demurrer was sustained and judgment entered for defendant for his costs, from which plaintiff prosecutes this appeal.

In support of the appeal it is urged quite earnestly that the action is one for breach of contract to effect a cure; but it appears quite plain to us from a consideration of the allegations of the complaint above recited that the action sounds in tort, and is for the recovery of damages for the defendant's wrongful act or neglect, thus bringing it within the operation of the section of the code referred to. We think this case is disposed of by what is said in Basler v. Sacramento etc. Co., 166 Cal. 33, [134 Pac. 993], where Mr. Justice Melvin after discussing numerous authorities concludes the court's opinion as follows: "We see no escape from the reasoning of the foregoing authorities. The demurrer was properly sustained for the reason that the cause of action was pleaded as one arising ex delicto; but even if we should regard it as arising upon contract, nevertheless the damages sought are directly referable to the personal injuries suffered by Mrs. Basler, and consequently the time for the commencement of the action is limited by the terms of subdivision 3 of section 340 of the Code of Civil Procedure."

The judgment is affirmed.

A petition for a rehearing of this cause was denied by the district court of appeal, on November 28, 1917, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 27, 1917.

[Civ. No. 1730. Third Appellate District.-October 31, 1917.]

ROSE FRANCIS DURST et al., Respondents, v. A. JOLLY et al., Appellants.

QUIETING TITLE - CROSS-COMPLAINT FOR SPECIFIC PERFORMANCE OF AGREEMENT TO LEASE UNENFORCEABLE AGREEMENT.-In this action to quiet title, where defendant admitted ownership by plaintiff of the land in question but by cross-complaint sought to compel the execution of a lease in accordance with an unsigned memorandum of agreement, it was held that the minds of the parties had never met, and that the so-called agreement was too indefinite and uncertain as to the terms of the proposed lease to be specifically enforced.

CONTRACT-RULE OF CONSTRUCTION-CERTAINTY AND DEFINITENESS OF AGREEMENT.-The terms of an agreement sought to be enforced must be ascertained from the instrument itself and not from the construction put upon it by the pleading demanding its enforcement. APPEAL from a judgment of the Superior Court of Yuba County. E. P. McDaniel, Judge.

The facts are stated in the opinion of the court.

E. Ray Manwell, and John M. Fulweiler, for Appellants.

W. H. Carlin, for Respondents.

HART, J.-The complaint was filed in January, 1915, and is in the usual form of an action to quiet title, the lands involved being ranch property in the counties of Yuba and Placer.

The defendants, A. Jolly, Raphael Jolly, and Mrs. Minnie Jolly, filed an answer in which they admitted that plaintiffs were the owners of the lands in question but denied that they (plaintiffs) were entitled to the possession thereof. Defendants A. Jolly and Raphael Jolly admitted "that they assert a claim and interest in and to said lands, and to the possession thereof, . . . but they deny that Mrs. Minnie Jolly .. has or claims any interest whatever in or to said described lands, except as residing thereon with her husband, A. Jolly.”

By way of cross-complaint, the defendants, A. Jolly and Raphael Jolly, alleged: "That, on and prior to about the first day of September, 1913, the said defendants were and had

been residing upon and cultivating and farming and raising hops on and under a lease from year to year for the plaintiffs a large portion of the lands described in the complaint; that, on or about said first day of September, 1913, the plaintiffs were desirous of leasing to these two defendants the lands described in the complaint, to be farmed and cultivated by defendants as hop lands and to be farmed as such, for the term of five years, and after considerable negotiations the plaintiffs drew up and submitted to the defendants a memoranda of lease containing the terms and conditions of the lease to be executed and delivered to the defendants within a reasonable time thereafter, a copy of the said memoranda of lease is hereunto annexed and made a part hereof, and marked Exhibit 'A.'" The said memoranda were not signed by either of the parties.

It is next alleged that defendants "accepted the terms and conditions of said proposed lease"; that it was understood and agreed that a lease, in accordance with the terms of said "memoranda of lease," should be drawn and executed by plaintiffs; that in the meantime defendants were to enter into possession of said lands, the same as if said lease had been executed and delivered; that defendants went into possession of said lands and began the farming and cultivation thereof according to the terms of said "memoranda of lease," believing a lease would be executed to them for the term of five years from the month of September, 1913, to the 1st of October, 1918; that, relying on said "memoranda of lease," defendants began farming said lands and planted the same in hops, expended large sums of money in putting a certain levee in proper condition, in clearing about twenty acres of land, boring a well, the purchase of wagons and mules, etc.

It is alleged that, about the fifteenth day of December, 1913, plaintiffs presented to and asked defendants to sign a lease, but that defendants refused so to do "because the said lease was altogether different and much more onerous than the one agreed upon, as set out in said Exhibit 'A,' and plaintiffs promised and agreed to change the same, and told defendants to go right ahead the same as had been agreed upon for the term of five years, that the matter would be fixed out thereafter as originally agreed upon"; that, relying upon said understanding, defendants continued to work said lands as required by the terms of said Exhibit "A," "and at the

end of the year in September, 1914, had done so at a loss of more than $250, besides the performance of their own labor up to said date." It is further alleged that, relying upon said understanding and with the consent of plaintiffs, defendants, in September and October, 1914, did a large amount of work on said ranch preparing the same for cultivation in the season of 1915, at a cost to them of more than two thousand one hundred dollars.

The prayer of the cross-complaint is "that plaintiffs be required to execute and deliver to said defendants a lease of the lands described in the complaint for a term of five years in accordance with and containing the terms and conditions set out and contained in the memoranda of lease, Exhibit 'A.'

Exhibit "A," attached to the complaint, covers four typewritten pages, and, in terse sentences, specifies what each of the parties to the proposed lease was expected to do.

To said cross-complaint and to said Exhibit "A" plaintiffs filed a demurrer on general grounds and also specifying that certain designated portions thereof were ambiguous, uncertain, and unintelligible. The judge presiding at the hearing of the demurrer in the court below filed a written opinion which, among other matters, contained the following: "An inspection of the memoranda prepared and set forth as Exhibit 'A' in the complaint shows that the minds of the parties never met in many of the terms to be contained in the lease. These terms were left for after consideration and agreement between the parties. . . . The cross-complaint seems to be full and well pleaded. I cannot see how it will be possible for defendants to state the matters therein stated, or to supply any allegation that would render the pleading unobjectionable. Therefore the demurrer is sustained without leave to amend."

On the 28th of June, 1915, the cause coming on regularly for trial, plaintiffs moved for judgment upon the pleadings in accordance with the prayer of plaintiffs' complaint. The motion was granted and judgment was entered quieting plaintiffs' title to the premises described in the complaint and decreeing that they were entitled to the possession thereof. The appeal is by defendants from said judgment. The demurrer to the cross-complaint was properly sustained, and, since the relief demanded by that pleading de