Jacobs Sultan Co. v. Union Mercantile Co.

Pemberton, C. J. The first assignment of error is the action of the court in overruling appellant’s demurrer to the complaint. The complaint sets up a contract, and alleges breaches thereof on the part of the defendant. In this respect we think the complaint does state a cause of action, at least for nominal damages. If so, it was good on a general demurrer [65] thereto. (McCarty v. Beach, 10 Cal. 462; Wilson v. Clarke, 20 Minn. 367 (Gil. 318); Insurance Co. v. Baldwin, 37 N. Y. 648.) The appellant contends that the complaint fails to state the cost value of the goods therein mentioned, or any fact showing how plaintiffs were damaged by the defendant’s refusing to permit Jacobs to supervise the collection of the accounts mentioned in the complaint, or any fact or facts which constitute a basis of special damages. This, we think, is true, and that the complaint, by reason thereof, is bad. But the demurrer found in the statement does not specify these defects, or any defects, in the complaint. The demurrer, although it says the complaint is ambiguous, uncertain, and unintelligible, does not specify wherein it is so. Unless the demurrer distinctly specify the grounds upon which objections to the complaint are taken, it may be disregarded. (Code of Civil Procedure, 1887, div. 1 § 87.) If the demurrer had distinctly specified the defects complained of as rendering the complaint ambiguous, uncertain, and unintelligible, it would have been good, and we have no doubt would have been sustained by the court below. But it did not do so. The demurrer, taken as a whole, is, in effect, a general demurrer, and is therefore as bad as the complaint it seeks to attack. (Veeder v. Cooley, 2 Hun. 74; Read v. Lambert, 10 Abb. Prac. (N. S.) 428, White v. Spencer, 14 N. Y. 247.) The appellant contends that the court erred in overruling its motion for a nonsuit. The motion for a nonsuit, like the demurrer, failed to specify the grounds upon which it was made. It is too general. It did not specifically call the attention of the court to the particulars in which the evidence was insufficient, or failed to support the allegations of the complaint. (Wright v. Insurance Co., 12 Mont. 474; Soyer v. Great Falls Water Co., 15 Mont. 1.) The appellant contends that the contract sued on is void, because not in writing, under the provisions of section 224, p. 652, of the Compiled Statutes of 1887. We think the consideration of the contract was not the sale and delivery of goods, [66] but the agreement on the part of respondent to forbear defending the suit being prosecuted, at the time of the agreement, by the appellant against the respondent, as shown in the complaint. It cannot be contended that the alleged contract on the part of the appellant to permit Jacobs to collect the accounts mentioned in the complaint, or not to charge more than $100 as attorney’s fees in the suit mentioned in the complaint, constituted a contract for the sale and delivery of goods. We think the appellant’s contention that the contract sued on is within the statute of frauds is untenable. The appellant assigns as error the action of the court in admitting evidence over its objections. These objections are based upon the theory, in many instances, that the contract sued on was void, as stated above; but, having seen that this contention is untenable, the objections lose their force. In other instances the evidence objected to, we think, was properly admitted. We do not discover any error in the action of the court in this particular. The appellant contends that there was no evidence to support the allegation in the complaint that Kleinschmidt was the agent of the appellant, or that the appellant ratified the action of Kleinschmidt, or that the evidence is sufficient to support the verdict of the jury. In this case there is a conflict of evidence in respect to these matters, which were properly submitted to the jury for their consideration and determination. We think there is sufficient evidence in the case to support their finding and verdict. The foregoing treatment of the case renders it unnecessary to consider other errors assigned, as they are immaterial to a determination of this appeal. The judgment and order appealed from are affirmed. Affirmed. De Witt and Hunt, JJ., concur.