Thorwarth v. Blanchard

Rowell, C. J. The declaration is demurred to for want of certainty and sufficiency in divers respects specifically stated. It is objected that there is no sufficient allegation of when and where said first-mentioned assessment was due and payable. But it is only traversable facts that need to be laid with time and place, and matter of inducement is not traversable unless essential to make out the case. Steph. PI. 243. Here the allegation objected to is mere matter of inducement, as said assessment never became due and payable, but was vacated and set aside by the court, and so it is not involved in the special charge against the defendant, which is the nonpayment of the subsequent assessment, which was sustained by the court. [299] It is further objected that there is no sufficient allegation as to the nature of the proceeding pending in said court, nor by whom the assessment was made. But the proceeding is alleged to have been for the condemnation of land and for assessments for benefits to land for the extension of a certain street in said District, and that is a sufficient allegation of its nature. As to who made the assessment, its making being, matter of inducement not essential to make out the case, it is enough to- allege that it was made, without saying by whom. Thus, speaking of matter of inducement, Mr. Chitty says that in declaring upon a promise to pay money in consideration of the forbearance of an antecedent debt, it is not necessary to state the particular cause or subject-matter of the debt, nor the time when nor the place where it was contracted. 1 Chit. PI. 291. It is further objected that there is no sufficient allegation of the “other assessment growing out of the same matter or suit,” nor what the same was, nor by whom made, and that the same is not alleged with sufficient certainty. The argument in support of this objection is, that here the allegation changes form, and the “proceedings” becomes a “matter” or “suit,” but that the allegation of “some matter” may or may not be coextensive with the “proceeding,” and that the language of the pleader is too uncertain and general to define a legal liability. But we think that the language of the ¿llegation can fairly be- taken only in a natural sense, and that thus taken, it has the requisite degree of certainty. As to the objection that there is no sufficient allegation of what court should sustain the assessment, and that the court is not alleged with sufficient certainty, it is plain that the supreme court of the District is meant. Nor is the objection good that there is no allegation sufficiently describing the “proceeding” in which assessment was or should be made, for it is clear that the proceeding then pending in the supreme court is the one meant. The declaration clearly discloses one proceeding and two assessments therein. It is objected that there is no sufficient allegation of the assessment made June 6, 1906, for that it is not alleged for what purpose it was made and by whom. But this objection is groundless, for the declaration expressly alleges that said assessment [300] was by said court in said proceeding for benefits to plaintiff’s land by tbe extension of said street. As to no' sufficient promise being alleged to pay said assessment, the declaration alleges in effect that as part of the contract of purchase the defendant agreed to pay any assessment growing out of said suit that the court should sustain, and that it sustained said assessment. This alleges a sufficient promise. The objection that the allegation of the proceeding is not certain, but 'is indefinite, uncertain, and insufficient, without saying wherein, is too general for consideration. The objection that the allegation, “provided it was sustained by the court,” is uncertain, indefinite, and not alleged with certainty, is without merit, for when read in connection with the words preceding them, their meaning is perfectly clear. The allegation that said assessment was entered on the tax re,cords of the District, and thereby became a lien on the land, is wholly dehors the promise as alleged, and therefore is superfluous and may be rejected as immaterial, since it does not show that the plaintiff has no cause of action. As to the objection that the allegation that the assessment was payable “on or about” July 6, 1907, is not sufficient as to time and uncertain in that respect, the plaintiff says that the allegation is surplusage, for that according to the declaration the defendant agreed to pay the assessment provided it was sustained by' the court, regardless of when its payment became a legal obligation upon the owner of the land, and so a good cause of action would be stated if this time was omitted altogether, for then it would sufficiently appear that the cause of action accrued before suit brought, as the declaration shows that the assessment was sustained May 6, 1907. But as the declaration does not allege that the defendant promised to pay ivhen the assessment was sustained, but only provided it was sustained, and then goes on to allege that it was payable to the District “on or about” July 6, 1907, which was two months after it was sustained, it is not' clear according to reasonable intendment and construction whether the pleader intended to state the time of payment by the defendant as being when the. assessment was sustained or when it in fact became payable to the District. But the latter seems to be the time intended, for otherwise it is not seen why he should have alleged it at all. There being this obscurity, the [301] latter is taken to be tbe time intended, and tbe allegation being traversable, its time should have been stated with certainty and not uncertainty. But it was not necessary to allege that the defendant had notice that the assessment was sustained, for he could find that out as well as the plaintiff. Lamphere v. Cowen, 42 Vt. 175; Drew v. Goodhue, 74 Vt. 436, 52 Atl. 971. It is further objected that no cause of action is shown nor damage sustained. But it is manifest that a cause of action is shown and nominal damages at least. Affirmed and remanded.