Ramsey v. Johnson

Corn, Justioe (after stating the facts). The plaintiff in error maintains that his demurrer should be sustained, because there is no specific allegation that the defendant promised to pay, or of the consideration upon which the promise was made. It is true that a ..recovery must be had, if at all, upon the promise of the defendant, and that a consideration is necessary to sustain the promise, and that both must be shown by the allegations of the petition. But no prescribed form of words is required; and it is not necessary that either the word (‘ promise; ’ ’ or the [398] word “ consideration, ” should occur in the pleading. The allegation that the defendant leased the premises for a certain term at a certain yearly rental to be paid annually in advance, is a statement of facts from which a promise to pay not only may be, but must be, inferred. And this, together with the further allegation that, under the provisions of the written instrument by which such leasing is evidenced, the defendant took, and still retains, possession of the premises, is very clearly a sufficient statement of the consideration for the promise. Whether it is the best or most philosophical method of pleading is quite another question; but it seems to be in accord with the requirement of our code of procedure, which is that the petition shall contain ‘ ‘ a statement of the facts constituting the cause of action in ordinary and concise language. ’ ’ The statement is in substantially the language of a precedent in Kinkead’s Code Pleading at Sec. 740. It is further urged by plaintiff in error that there is no allegation of a breach of the contract. Paragraph 4 of the petition alleges ‘ ‘ that defendant has not paid said sum, nor any part thereof, although requested so to do.” This is the familiar form of alleging a breach, and it is not perceived why it is not sufficient in this case. Du Brutz v. Jessup (Cal.), 11 Pac., 498 is relied upon as authority by plaintiff in error upon this point. In that case the promise pleaded was to pay the plaintiff certain money, and the breach alleged was the refusal of the defendant to sign a certain agreement. It has no applicability to the pleading in this case. It is further contended that the statement of the second cause of action is insufficient, because the execution of the written instrument by the parties is not again specifically averred. It was not necessary. The first clause of the statement of the second cause of action begins as follows: “ The plaintiff alleges that under the terms and conditions of said agreement of lease, it was agreed, ” etc. This was sufficient. Clear and distinct reference is made to the agreement already once set forth in the petition. [399] While each cause of action must be complete in itself, such allegations may be incorporated into the statement of a subsequent cause of action by proper reference without repetition. Kinkead’s Code Pleading, Sec. 20. So far as the other errors assigned, that the court erred in appointing a receiver, and in finding and rendering judgment against the defendant, are predicated upon the insufficiency of the petition, they need not be separately considered. But the plaintiff m error strenuously insists that the findings of the trial court are not sufficient to support the judgment. It is not claimed that upon the facts found some other judgment should have been entered, but simply, as we understand, that the facts found are not sufficient to support any judgment for the plaintiff. The first finding, after reciting that the case came on to be heard upon the petition of the plaintiff and the answer of the defendant and the submission of the case to the court without a jury, is:-“ the court, after hearing the evidence, finds that the defendant, Robert Ramsey, is indebted to the plaintiff, Ellen C. Johnson, in the sum of three hundred and sixty seven and twenty one-hundredths dollars, principal debt and interest.” It is contended that a finding that there is a certain sum due without a finding of non-payment, is a mere legal conclusion, and is insufficient to support a judgment. We do not think so. Whether the defendant was indebted to the plaintiff, was an ultimate fact in issue between the parties. That in order to reach the finding, consideration of questions of law was necessary, does not change its character as a conclusion of fact. And if it comprehends also a conclusion of law, that is not material. Separate findings of law and fact were not requested, and if they had been it would be difficult to separate the conclusion of law and conclusion of fact involved in the finding that the defendant was indebted to the plaintiff. It is in our opinion a proper and appropriate finding of fact, and that, taken in connection with the pleadings to which reference is made, it is sufficient to [400] support a judgment, for that sum of money, can no reasonably be questioned. We do not perceive the force of the claim that an omission to find, in addition, that the amount was unpaid, changes its character from a finding of fact to a finding of law; but in any event, a finding that the indebtedness exists involves and includes a finding of non-payment. The only other finding is that the agreement of lease was a lien upon certain enumerated personal property of the defendant. It would seem to be plain that this is sufficient to support a judgment declaring the lien and awarding execution. Citizen’s Bank v. Farwell, 6 C. C. A., 24 (56 Fed. Rep. 570), is relied upon asacase precisely in point and sustaining the view of counsel for plaintiff in error. In that case it appeared that the trial court intended to embody the agreement in the findings, but by oversight it was omitted. The Court of Appeals say that independently of the agreement the facts found show no liability of the bank, and the agreement being omitted, it results that the findings do not support the judgment. In this case the facts are sufficiently found without embodying the agreement, and as found they' support the judgment. The two cases are readily distinguished. We think the finding of facts in detail, which is urged to be necessary by plaintiff in error, would be a mere finding of the evidence, which is never required and is usually improper. Only the ultimate facts should be found. The judgment must be affirmed. Potter, C. J., and Craig, Dist. J., concur.