The Court did not err in granting the motion to strike out.
Damages must be proximate, and not remote, contingent, or speculative. Contingent, contemplated, and speculative profits are not allowed. (Sedgwick on Damages, 6th ed., secs. 38, 58, 60, 70 and note II, 71 and note I; Muldrow v. Norris , 2 Cal. 74; Drake on Att., 4th ed., p. 132, secs. 175-6, p. 120, sec. 156; Hurd v. Barnhart, Pacific Coast Law Jour. 246, c c 3300.)
As to counsel's fees: ( Code of Civil Procedure, sec. 1021; Harston's Practice, note to sec. 1021; Williams v. McDougall, 39 and 85; Drake on Att. secs. 175-6, p. 132; 3 Parsons on Con., p. 176, sec. 164; also note I; Sedgwick on Dam., sec. 34, and note I; same, pp. 108-10 and 115; Heath v. Lent , 1 Cal. 410; Oertrichs v. Spain, 15 Wall. 211.)
The only damages the law allows for the detention of money under its process is the legal interest upon the amount detained. The rule is a fixed one. (Heyman v. Landers , 12 Cal. 111; Sedgwick on Dam., chap. 8; Lally v. Wise , 28 Cal. 539; 2 Parsons on Con., p. 489; 3 Parsons on Con., p. 155; Sedgwick on Dam., p. 33, sec. 37; p. 34, sec. 38.)
The Court did not err in dismissing the action for want of jurisdiction. (Page v. Ellis , 9 Cal. 248.)
The amount in controversy is what determines the jurisdiction, and the test is the amount sued for. (Bradley v. Kent , 22 Cal. 172; Maxfield v. Johnson , 30 Cal. 545; Solomon v. Reese , 34 Cal. 34.)
The plaintiff must recover, if at all, according to the averment of the complaint, and not according to what he asks in his prayer. (Sterling v. Hanson , 1 Cal. 479; Wratten v. Wilson , 22 Cal. 466; 6 Nev. 162.)
JUDGES: McKinstry, J., concurring. Wallace, C. J., did not express an opinion.
OPINION THE COURT
The Court erred in sustaining the defendant's motion to strike out portions of the complaint. The matters stricken out constituted portions of the cause of action, and could have been reached only by special demurrer. It is only irrelevant or redundant matter which may be stricken from a pleading by virtue of the provisions of sec. 453, Code of Civil Procedure. An averment of the fact constituting the plaintiff's cause of action cannot be said to be irrelevant or redundant to itself. Judgment reversed and cause remanded, with directions to overrule the motion to strike out portions of the complaint.
CONCUR
McKINSTRY
McKinstry, J., concurring:
I concur in the judgment reversing the judgment below, on the ground that the jurisdiction of the District Court was determinable by reference to the ad damnum clauses of the original complaint.
I dissent from the views expressed in the prevailing opinion, and from the direction that the motion to strike out be denied. The portions of the complaint stricken out were irrelevant and redundant, because they added nothing to the legal effect of the other averments. They were, therefore, properly stricken out. A demurrer lies only to an entire count of a pleading, and cannot be resorted to as a means of disposing of a portion of a distinct count, when the rest thereof contains a statement of a cause of action.