¶1I dissent.
¶2The opinion of my associates is to my mind inconsistent and erroneous in that it places an extremely strict construction upon the complaint of plaintiffs and yet at the same time it brushes aside a serious defect in defendants’ demurrer.
¶3The complaint, it is true, is unartfully and loosely drawn, and the averments touching upon discovery of the fraud lack fullness and certainty. However, as noted in the majority opinion, the rules requiring full and complete allegation of the circumstances of delayed discovery of fraud have been somewhat relaxed in cases which involve a confidential relationship (Lataillade v. Orena, 91 Cal. 565 [27 Pac. 924, 25 Am. St. Rep. 219]; Rutherford v. Rideout Bank, 11 Cal. (2d) 479 [80 Pac. (2d) 978, 117 A. L. R. 383]). Furthermore, even if a pleading is lacking in certainty because it presents essential facts only inferentially and it would therefore be subject to attack by special demurrer, it may still be sufficient as against general demurrer. (Manuel v. Calistoga Vineyard Co., 17 Cal. App. (2d) 377 [61 Pac. (2d) 1204]; 21 Cal. Jur., p. 111, sec. 69; p. 268 et seq., see. 187.) Such is the case here. As no special demurrer was filed and the deficiencies in the complaint are not such as to render it vulnerable against general demurrer, it should be held to state facts sufficient to constitute a cause of action.
¶4In the several cases cited in the majority opinion, the complaint showed on its face that the cause was barred by the statute of limitations, which had been specially pleaded. (Lady Washington C. Co. v. Wood, (1896) 113 Cal. 482 [45 Pac. 809] ; Consolidated R. & P. Co. v. Scarborough, 216 Cal. 698 [16 Pac. (2d) 268] ; Turner v. Liner, 31 Cal. App. (2d) 196 [87 Pac. (2d) 740].) None of these cases considered the question of whether, in the absence of either a special demurrer or a proper plea of the statute of limitations, the pleading would have been sufficient as against general demurrer.
¶5*433In the present case, as already stated, there was no special demurrer, nor was there, in my opinion, a good and sufficient plea of the statute of limitations. An attempt was made in the general demurrer to plead the applicable statute (see. 338, subd. 4, Code Civ. Proe.), but the subdivision of the code section was not specified as required by section 458 of the Code of Civil Procedure.
¶6Section 458 was enacted in 1872 and has never been amended. It provides: “In pleading the statute of limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barfed by the provisions of section- (giving the number of the section and subdivision thereof, .if it is so divided, relied upon) of the Code of Civil Procedure ...”
¶7As early as 1893, in the case of Wolters v. Thomas, 3 Cal. Unrep. 843 [32 Pac. 565], it was held that all of the requirements of this section must be met, and that therefore the issue of the statute of limitations would not be raised by a plea which merely specified the code section relied upon, without also specifying the subdivision thereof. This holding is approved and reaffirmed in Overton v. White, 18 Cal. App. (2d) 567 [64 Pac. (2d) 758, 65 Pac. (2d) 99]. See, also, Hart v. Slayman, 30 Cal. App. (2d) 556 [86 Pac. (2d) 861].
¶8It is my view that these decisions are sound. The opposing party, I believe, is entitled to know the precise defense which he has to meet and this essential information can be assured him only by requiring that the subdivision number as well as the number of the code section be specified.
¶9There is a line of early cases which would confine application of section 458 to a plea of the statute of limitations raised by answer, and hold it inapplicable to such plea when made by demurrer. No reasoning supports the distinction. It had its origin in a misconception in the case of Williams v. Bergin, 116 Cal. 56 [47 Pac. 877], of the purport of the decision in the earlier case of Brennan v. Ford, 46 Cal. 7.
¶10Brennan v. Fordconcerned a demurrer which alleged that the cause of action was “barred by the Statute of Limitations”. An objection, made on the general ground that the defense was not well pleaded in point of form, was simply held in so many words to be untenable. Section 458 was not cited, nor was failure to specify the code section mentioned. *434The statute had only become effective on January 1, 1873, and the opinion was filed in April of the same year.
¶11The decision in Williams v. Berginwas rendered in 1897. There this court, again considering the effect of a demurrer which merely alleged that the cause was " barred by the statute of limitations”, cited the Brennan case as a premise for a restricted construction of section -458, saying: “The demurrer sufficiently presented the defense of the statute of limitations. (Brennan v. Ford, 46 Cal. 7.) The provisions of section 458 of the Code of Civil Procedure have reference to cases in which the statute is pleaded in the answer as an affirmative defense. It is in an answer, and not in a demurrer, that ‘facls showing the defense’ would be proper, and the provision that ‘the party pleading must establish on the trial the facts showing that the cause of action is so barred’, clearly indicates that the section has no reference to a demurrer to a complaint upon the ground that the facts alleged therein show that the cause of action is barred. In such a case it is sufficient to specify the statute as one of the grounds of the demurrer. A demurrer upon this ground can be sustained, however, only when it affirmatively appears from the complaint that the plaintiff’s cause of action is barred. The defendant cannot, in support of the demurrer, invoke other facts which might be introduced in his defense. ’ ’ (116 Cal. 56, at pp. 59-60.)
¶12The holding was perpetuated in the later ease of Spreckels v. Spreckels, 172 Cal. 775, 783 [158 Pac. 537], where the court said: “The demurrer does not specify any section of the statute, but that is not necessary when the question is raised by demurrer. (Brennan v. Ford, 46 Cal. 7; Williams v. Bergin, 116 Cal. [56] 59 [47 Pac. 877].) ” A similar statement is found in Young v. California State Board of Pharmacy, 273 Fed. 30, 33.
¶13In my opinion these holdings are clearly erroneous and should not be followed. There is nothing whatsoever in the language of section 458 to indicate that it is, or was ever meant to be confined in its application to a plea of the statute of limitations by answer, and to be inapplicable to such a plea when made by demurrer. The code commissioners’ note, explaining the enactment, states the reason which makes conformity with its requirements as important in the one case as in the other. Said note reads:
*435“Note—The Commissioners say in their report that they introduced this section believing that a pleading under it will be more concise, and at the same time will afford to the opposite party all the information necessary to enable him to meet the defense made.” Obviously, it is quite as necessary that the litigant have all necessary information to meet the defense when it is raised by demurrer as when it is raised by answer.
¶14It is my conclusion that the rule of construction of section 458 declared in the line of cases headed by Wotters v. Thomas, supra,should be applied regardless of whether the plea of the statute of limitations is raised by answer or demurrer. In the present ease it should be held that the attempted plea of the statute of limitations in the demurrer was nullified by its failure to conform to the requirements of section 458 of the Code of Civil Procedure, that the elimination of this plea and the absence of a special demurrer, left the complaint subject only to the general ground of demurrer that it failed to state facts sufficient to constitute a cause of action and that as against such an attack the pleading is clearly sufficient. The judgment of the trial court should be reversed with direction that the demurrer be overruled.
¶15Curtis, J., concurred.
¶16Houser, J., concurred in the foregoing conclusion.