livery, it cannot be held that the trial court could not have found from the evidence that Mrs. McArthur intended to and did deliver the deeds.

2. Appellant contends that certain findings other than those of delivery are not supported by the evidence. Finding II, which is to the effect that neither Mrs. McArthur nor her estate was the owner of the property at all times, is one of these. [4] Manifestly, this finding is correct, for upon the theory that there was a delivery on November 3, 1917, neither she nor her estate could have been the owner after that date.

The other findings complained of are to the effect that it is not true the deeds were without consideration, that it is not true they were made in contemplation of death, that it is not true that Mrs. McArthur instructed Mrs. Willebrandt to return the deeds if she did not die, that it is true respondent had the deeds on November 8th, that it is true they were returned to him by Mrs. Willebrandt, but not for the purpose of returning them to Mrs. McArthur, that it is not true respondent on November 8th said the deeds were in the safe deposit box in Los Angeles, and that it is not true that on November 8th, or at any other time, respondent went with Mrs. McArthur to the safe deposit box and there delivered the deeds to her, and that she then placed them in her private safe deposit box. These findings are on the issues presented by the pleadings. As we have shown, the finding on delivery is to the effect that for a sufficient consideration Mrs. McArthur of her own free will executed and delivered the deeds. Lieman v. Golly, 178 Cal. 544, [174 Pac. 33], was an action to set aside deeds for lack of consideration. The court said: "In his brief the appellant claims that the finding of the consideration is insufficient. The ninth finding states that each of said deeds 'was executed for a good consideration passing from defendant to said Annie M. Golly.' No further finding was necessary. On the contrary, since the findings also show that the deeds were executed voluntarily and with knowledge of their contents and the intent to convey, no consideration was necessary to support the deeds as valid conveyances of the land. (Civ. Code, sec. 1040.)" [5] It is true the complaint alleged the transfer was made in contemplation of death, but in view of the finding that the deeds were delivered during

the lifetime of Mrs. McArthur and that title was found to be in respondent, her motive-whether she delivered the deeds in contemplation of death-is immaterial and the finding could not have been prejudicial. As to the remaining findings, Mrs. Willebrandt testified she gave the deeds to respondent, that she did not understand Mrs. McArthur wanted them returned to her, and respondent testified he told Mrs. McArthur, a short while after the deeds were signed, that he had them in his desk at the ranch. The finding that respondent did not return the deeds to Mrs. McArthur is supported by the evidence, for it is not disputed she secured only the copies. The finding that Mrs. McArthur, on or about November 27th, learned for the first time that the copies of the deeds which she destroyed were not the originals is immaterial, for it having been found there was a delivery on November 3d, whether she later learned that copies and not originals had been given to her, becomes unimportant.

[6] 3. There was no error in excluding the testimony concerning Mrs. McArthur's physical condition. Her testimony to the effect that she thought she was critically ill was admitted, and the statement of the doctor to her concerning her condition, since the doctor was not called as a witness, was hearsay. [7] The testimony of Mrs. Foster, as to whether or not Mrs. McArthur was in fear of respondent, was properly excluded, for there was no claim that the deeds were delivered by reason of respondent's coercion. The testimony of Mrs. McCandless concerning the destruction of the deeds was properly rejected because the questions had already been asked and answered.

4. Appellant's contention that the judgment must be reversed for the reason that it exceeds the relief prayed for, in that in the separate defense and in the cross-complaint the respondent had alleged himself to be the owner of a onehalf interest in the property and asked to be adjudged such owner, cannot be sustained. In Zellerbach v. Allenberg, 99 Cal. 57, [33 Pac. 786] it was contended the judgment was not authorized because it granted the defendant affirmative relief when no such relief was prayed for. The court said: "There was no error in the action of the court complained of. The case was one in equity, and the court was authorized to grant any relief consistent with the case made

and embraced within the issues, although not specifically prayed for." [8] In this case the relief granted was clearly embraced within the issues, for the complaint asked a cancellation of the deeds, and the court found that respondent was the owner of the property. Appellant argues further that the question presented here "is the effect in an answer of allegations the only effect of which, when the pleading is taken as a whole, is that of a disclaimer and admission against interest as to a part of the subject matter of the action." In Billings v. Drew, 52 Cal. 565, it was declared: "They had the right to set up negative as well as affirmative defenses to the action, and the affirmative matter, separately pleaded, did not operate as a waiver or withdrawal of the denials contained in other portions of the answer." In Nudd v. Thompson, 34 Cal. 39, a case involving a motion for judgment on the pleadings, it was said: "We had occasion to consider that question in Siter v. Jewett, 33 Cal. 92, and we held that 'where there are several answers, an admission made in one is not available in proof of issues raised by the others.'" In Meyers v. Merillon, 118 Cal. 352, [50 Pac. 662], the court declared: "As in separate defenses a denial in one is not waived by an admission of the same matter in another (Billings v. Drew, 52 Cal. 565; Miles v. Woodward, 115 Cal. 308, [46 Pac. 1076]), so here the denial of the answer is not waived or overcome by an averment in the cross-complaint of substantially the same facts as those which the answer denies." It follows that respondent is not bound by the averments in the special defense and crosscomplaint, and that the relief need not be limited to that prayed for. In Southern Pac. R. R. Co. v. Dufour, 95 Cal. 615, [19 L. R. A. 92, 30 Pac. 783], it was stated: "At the close of defendant's case he withdrew his special defense, and this action of counsel is assigned as error. Upon an examination of the record we find no objection or exception taken to the withdrawal of this special defense from the answer, and hence do not perceive how it can be a proper subject for review. If plaintiff, relying on the allegations of the defense to cure a defective complaint, was surprised and misled by such action of counsel, upon a proper showing he would have been entitled to a continuance in order that he might amend his complaint or procure additional evidence, but there is nothing to indicate that he applied for

such relief." The question presented here is similar to the one in that case, with the additional fact that respondent moved also to dismiss the cross-complaint. [9] No objection was made by counsel for appellant to the granting of these motions, so the question may not be raised for the first time on appeal.

[10] It follows that respondent's withdrawal of these pleadings, which admitted title to one-half of the property to be in appellant, carried with it the corresponding prayer for relief, and left only the general prayer of the answer, which was "for such other and further relief as to the court may seem meet and proper in the premises."

5. It having been decided that the findings of delivery, as well as those on other material issues presented by the pleadings, were supported by the evidence, and that appellant's objections to the admission of testimony and to respondent's withdrawal of certain of his pleadings were without merit, it becomes unnecessary to consider respondent's contention that the bill of exceptions, which contains the entire record on appeal, not having been filed and served within the statutory period, and that the application for relief from such failure under section 473 of the Code of Civil Procedure having been fatally defective, appellant is not entitled to a review of the evidence.

Judgment affirmed.

Wilbur, J., Shurtleff, J., Sloane, J., Lennon, J., and Angellotti, C. J., concurred.

[S. F. No. 9414. In Bank.-October 10, 1921.J

MERVYN GOLDSTEIN, by His Guardian, etc., Appellant, v. W. HEALY, Respondent.

[1] PLEADING-DEMURRER-ADMISSIONS.-While it is well settled that a demurrer admits the truth of all facts that are well pleaded in the complaint, it does not confess any omitted circumstance which is indispensable to the cause of action upon which it is based, or essential to remedy an allegation specially challenged for uncertainty or ambiguity.

[2] ID.-ESSENTIALS OF COMPLAINT.-All that is required of a plaintiff, even as against a special demurrer, is that he set forth in

his complaint the essential facts of his case with reasonable precision, and with particularity sufficiently specific to acquaint the defendant of the nature, source, and extent of his cause of action. [3] INNKEEPERS-GUESTS-DEFINITION.-A guest of an inn or hotel may be defined as one who receives accommodations or entertainment therein, usually for compensation.

[4] ID. GUESTS — HOTELS - RIGHT TO INVITE PERSONS TO.-In the absence of a regulation or agreement to the contrary, a guest of a hotel may, as a matter of right, under such reasonable restrictions and regulations as the manager may impose, invite unobjectionable persons to visit him at the inn for lawful purposes and at proper times.

[5] ID. RIGHTS OF INVITEES.-To all such invitees, the innkeeper owes the duty of at all times maintaining his hotel premises in a reasonably safe condition, and of exercising reasonable care to protect them while in the hotel and in the part thereof open to the public from personal injury through his negligence; but this duty does not obtain in cases where the injury to the invitee was due to a patent defect, or structural insecurity in the hotel premises or its equipment.

[6] ID.-ACTION FOR DAMAGES

- INJURY TO INVITEE OF GUEST OF

HOTEL-PLEADINGS-SUFFICIENCY OF COMPLAINT.-In an action by the invitee of a guest of a hotel for personal injuries received by him, alleged to have been caused by the giving away of a railing on a platform whereby he was precipitated to the ground, an allegation that the decayed condition of the railing was "unknown" to plaintiff was in effect a sufficient declaration that it was latent.

[7] ID.—FAILURE TO EXERCISE CARE-DEFENSE.-If the defective condition of the railing in such a case was such that it would have been discovered by plaintiff in the exercise of ordinary care, the failure to exercise such care would be a defense which the plaintiff is not required to anticipate.

[8] PLEADING PARTICULARITY REQUIRED MATTERS IN KNOWLEDGE OF DEFENDANT.-Less particularity is required in the allegations of the complaint where the facts in it stated are such that the defendant, from their nature and his relation to them, has full information concerning them.

[9] ID.-SUFFICIENCY OF COMPLAINT.-In such a case the causal connection between the negligence and the injury are sufficiently shown in the complaint by the allegations, "that while on said platform. . . and while standing on said platform and talking

5. Liability of innkeeper for personal injury to guest from condition of the premises, notes, 15 Ann. Cas. 925; Ann. Cas. 1912A, 1210; 43 L. R. A. (N. S.) 657.