Sweet v. Desha Lumber Co.

Hemingway, J. 1. Construe-tion of pleading. Construing the complaint liberally, as the code provides, we think it may be said to state facts showing that a contract was made and broken by defendant, and to contain an allegation that plaintiffs were damaged by the breach in the sum of $10,000. From those facts springs a right of action maintainable in the circuit court ; if there was any defect in the manner of stating them, rendering the complaint vague or uncertain, it could have been reached by motion to make more definite and certain, but not by demurrer. Bushey v. Reynolds, 31 Ark. 657 ; Bush v. Cella, 52 Ark. 378. 2- Agreement not to be performed within one year. It is insisted that the complaint was founded upon a contract that was not to be performed within one year, and was, therefore, void because not in writing. Mansf. Dig. sec. 3371, sub. 5. It becomes necessary, in determining this question, to ascertain what the contract, as set out in the complaint, is. Turning to the complaint, we find that the allegations are not direct or perspicuous, and can well appreciate the difficulties, growing out of this fact, that the learned judge below encountered in his efforts to pass upon the demurrer. But, as we understand the complaint, the contract on part of the defendant was, that it would place cars upon its track at plaintiffs’ mill for their use, until such time as their business would justify defendant in building a switch at said mill, and that it would then build the switch and place cars upon it; the obligation to continue so long as plaintiffs should operate a mill on the line of defendant’s road in Arkansas City. The proper construction of the statute relied upon was carefully considered by this court in the case of the Railway Co. v. Whitley, 54 Ark. 199 ; as our conclusions are recorded in the opinion therein delivered, and we have seen no reason to change or modify them, it is unnecessary to again enter upon any review of the authorities or discussion of the matter. We are unable to say, upon the statement of the contract as'we understand it to be made in the complaint, that it “was not to be performed” in one year; its duration might extend further, but there was nothing in its terms to preclude the idea that it might within that time be fully executed, and there was no understanding or intention that it “was not to be performed.” The obligation contemplated immediate service, and was to continue so long as plaintiffs operated a mill in Arkansas City on the line of defendant’s road, and upon that event to terminate. It was entirely possible that within one year the plaintiffs would cease to operate it, and in that •event the contract could have been completed within the year. Reverse and remand, with directions to overrule the demurrer.