Concurring. — I concur in the judgment.
It seems to me the facts of this case place it squarely within the rule announced in Cox v. McLaughlin, 52 Cal. 590, and adhered to in a number of appeals (54 Cal. 605; 63 Cal. 196; 76 Cal. 60, 9 Am. St. Rep. 164, 18 Pac. 100), that the mere refusal to pay an installment of money due under a contract was not the breach of a condition precedent, or such a prevention of performance as would sustain an action upon the contract for its profits. The stipulations of a contract might be so worded as to make the payments a condition precedent to performance, and a failure to make the payments constitute such prevention as would be equivalent to performance. But the rule and the reason for it have no application to the facts of the present ease.
*550Such a failure might, under a particular state of facts, justify the contractor in refusing to proceed and authorize an action for the value of the work already done as upon a quantum meruit. San Francisco etc. Co. v. Dumbarton etc. Co., 119 Cal. 272, 51 Pac. 335; Woodruff Co. v. Exchange Realty Co., 21 Cal. App. 607, 132 Pac. 598. See Pasquale Valente v. Israel Weinberg, 80 Conn. 134, 67 Atl. 369, and case note in 13 L. R. A. (N. S.) 448. Clearly, the remedy of the plaintiff, if he has a cause of action, is upon a quantum meruit and not upon the contract.
The appellant suggests, .however, that the Code has abandoned technical forms of actions, and is more concerned with the issues involved than with the particular name which should be given to the form of action. The Code has done all this, and the adjudications have followed its spirit with the utmost liberality. It is the policy of the law that access to the courts should be free and unobstructed, both for the purpose of maintaining actions and making defenses thereto. It is, however, of no more importance that a right may be asserted and a wrong redressed than it is that a person against whom a complaint is made shall have the legal privilege of showing, both in law and in fact, that the alleged right is unfounded and the alleged wrong incapable of the relief asked, and when the matter is once finally determined, if it should come up again, be protected by the former adjudication. Herein lies substantial justice.
The Code provisions do not attempt to do away with causes of actions nor with the doctrine of res judicata, but they have done away with such allegations as were purely technical and formal under the old system. There now is, and must always be, the necessity for alleging in ordinary and concise language all the material facts essential to constitute the particular cause of action relied on. Such is the spirit of the Code, and it must be adhered to so that the opposite party may be apprised of what he is to meet, and thus be enabled to make his defense; and, where the case is finally settled, it may in the future be determined with reasonable certainty what has been set at rest. It is not because of a particular name that the law frowns upon the plaintiff’s pleading, but it is because of the want of essential allegations of fact that he is defeated. It is not here a mere distinction in matter of form, — such is *551obliterated by the Code, — but the thing here is a matter of substance that may not be dispensed with under the Code. ■Definiteness and distinctness are by no means technicalities, but instrumentalities with which confusion may be conquered or avoided.
“It is a gross error into which many have fallen to suppose that, because the practice act abolishes the distinctions in the forms of action, it is immaterial what the substantial allegations of pleadings are.” Sampson v. Schaeffer, 3 Cal. 196, 205. See, also, Miller v. Van Tassel, 24 Cal. 459, 463.
“The object of the Code was to abolish the different forms of action, and the technical and artificial modes of pleading used at common law, but not to dispense with the certainty, regularity and uniformity which are essential in every system-adopted for the administration of justice. The plaintiff must state his cause of action with the same substantial certainty as was formerly required in a declaration.” Oates v. Gray, 66 N. C. 442, 443.
“The rules of pleading at common law have not been abrogated by the C. C. P. The essential principles still remain, and have only been modified as to technicalities and matters of form.” Parsley v. Nicholson, 65 N. C. 207, 210.
“While by provision of the Civil Code the common-law forms of action are expressly abolished, yet it is true, and ever must remain true, in any orderly administration of justice, that the precise nature of the cause of action must be determined before the rules of law applicable thereto can be ascertained and applied. Any other method of procedure must of necessity lead to inextricable confusion.” Carbondale Inv. Co. v. Burdick, 67 Kan. 329, 334, 72 Pac. 781, 783; 1 Corpus Juris. Actions, sec. 128.
In an action for the enforcement of a private right, or the redress of a private wrong, one could not be tried and punished for the commission of a public offense. Nor should one charged with the commission of a homicide be compelled to defend the claims of his grocer that his last month’s account had not been settled. These illustrations may be extreme, but only in degree, not in principle. The means used must be appropriate to the end sought, and it must never be lost sight of that the right to defend against an assertion is, *552under the law, just as jealously regarded as the right to assert.
If the plaintiff can state a cause of action, though in view of the facts here presented a recovery may be doubtful, nevertheless I think that, in the furtherance of substantial justice, it would not be an abuse of discretion by the superior court if he were allowed, upon terms, to amend his pleading if he be so advised.