Weber v. Lewis

Fisk, J. This is an appeal from an order overruling a demurrer to the complaint, and the sole question presented is the correctness of such ruling. The complaint, omitting formal parts, is as follows: “The plaintiff complains and alleges: (1) That on the 14th day of October, A. D. 1904, the above-named plaintiff and defendant made and entered into a written contract, an agreement in writing, wherein and whereby this plaintiff rented from the above-named defendant the northwest quarter of section twelve (12) in township one hundred thirty-five (135) north of range sixty-two (62) west of the Fifth principal meridian, and also the west half of section seven (7) in township one hundred thirty-five (135) north of range sixty-one (61) west, for the period of three (3) years. The same ending on or before April 1, A. D. 1908. This contract also included the rental of some stock, and the doing of various work. (2) That by reason of the rental of the said land, and the work performed by this defendant, and the use of this plaintiff’s machinery, and the sale of cattle belonging to this plaintiff and the defendant jointly, by the defendant, and the storing of grain of defendant by plaintiff, and for the furnishing of twine, this defendant is indebted to this plaintiff in the sum of four hundred fifty-four and 50-100 ($454.50) dollars; no part of which has been paid save and except the sum of forty-one and 85-100 ($41.85) dollars by reason of flax and barley furnished and the labor performed by said defendant. That there is now due said plaintiff by reason of said account the sum of four hundred twelve and 65-100 ($412.65) dollars from this defendant. Wherefore, plaintiff prays judgment against the defendant for the sum of four hundred twelve and 65-100 ($412.65) dollars, and interest from and since October 31, A. D. 1907, together with his costs and disbursements herein.” [476] The sole ground of the demurrer is that the complaint fails to state facts sufficient to constitute a cause of action. While the complaint is very inartistically drawn, and is, no doubt, subject to attack by motion to make more definite and certain, we are of opinion that, under the liberal rule to be applied in testing its sufficiency as against such an attack, it should be upheld, although the author thereof cannot, with pride, point to the same as a model of scientific pleading. The rule is firmly established that a complaint, when attacked by demurrer upon the ground that it fails to state facts sufficient to constitute a cause of action, will be liberally construed in favor of such pleading, and the same will be upheld when it contains allegations of fact sufficient to reasonably and fairly apprise the defendant of the nature of the claim against him. Prof. Pomeroy, in his valuable work on Code Remedies (section 549), gives a very clear and correct statement of the rule as follows: “The true doctrine to be gathered from all the cases is that if the substantial facts which constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, and defective, such insufficiency pertaining, however, to the form rather than to the substance, the proper mode of correction is not by demurrer nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment. From the citations in the footnote, it is clear that the courts have, with a considerable degree of unanimity, agreed upon this rule, and have in most instances applied it to defects and mistakes having the same general features, and have sometimes severely strained the doctrine of liberal construction in order to enforce it. Thus, if instead of alleging the issuable facts the pleader should state the evidence of such facts, or even a portion only thereof, unless the omission was so extensive that no cause of action at all was indicated, or if he should aver conclusions of law, in place of fact, the resulting insufficiency and imperfection would pertain to the form rather than to the substance, and the mode of correction would be by a motion, and not by a demurrer.” Dixon, C. J., in Morse v. Gilman, 16 Wis. 504, stated the rule as follows: “A complaint to be overthrown by demurrer, or by objection to evidence, must be wholly insufficient. If any portion [477] of it, or to any extent, it presents facts sufficient to constitufe a cause of'action, or if a good cause of action can be gathered from it, it will stand, however inartificially these facts may be presented, or, however defective, uncertain, or redundant may be the mode of their treatment. Contrary to the common-law rule, every reasonable intendment and presumption is to be made in favor of the pleading; and it will not be set aside on demurrer unless it be so fatally defective that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever.” In the more recent case of South Milwaukee Co. v. Murphy, 112 Wis. 614, 88 N. W. 583, 58 L. R. A. 82, Marshall, J., said: “Under the liberal rules of pleading prescribed by the Code, facts which are inferable with reasonable certainty when stated according to their legal effect, if so alleged, do not render the pleading bad upon a challenge for insufficiency, though it may be open to a motion to make more definite and certain.” Prof. Sunderland, in his valuable article on Pleading in 31 Cyc. at page 280, says: “Under the Codes, the allegation of a legal conclusion, instead of the facts upon which it is based, does not usualy make a pleading bad on general demurrer”' — citing City of Santa Barbara v. Eldred, 108 Cal. 294, 41 Pac. 410; Lambe v. McCormick, 116 Iowa, 169, 89 N. W. 241; Union, etc., Co. v. Stone, 54 Kan. 83, 37 Pac. 1012; Newport Light Co. v. City of Newport (Ky.) 19 S. W. 188; Harris v. Halverson, 23 Wash. 779, 63 Pac. 549; and other cases. It is, of course, a well-settled general rule that facts, not legal conclusions, must be alleged in pleadings; but it is equally well settled that a pleading is not rendered insufficient because it contains legal conclusions in addition to the facts which properly belong in it. 31 Cyc. 49-51, and cases cited. For illustrations of the rule, see Id. 52 et seq. Applying the foregoing rules to the complaint in the case at bar leads us to the conclusion that the demurrer was properly overruled. The complaint alleges that a certain written contract was entered into between plaintiff and defendant, wherein and whereby plaintiff leased from defendant certain real property In 1904 for the period of three years, and that such contract also included the rental of certain stock and the dbing of various work. Then follows allegations by way of recital, but to the effect that work was performed by the plaintiff under such contract, and that defend [478] ant had the use of plaintiff’s machinery, also, that defendant sold certain cattle belonging jointly to plaintiff and the defendant, also, that plaintiff stored certain grain for defendant and furnished him certain twine, for all of which defendant is indebted to the plaintiff in the sum of $454.50, no part of which has been paid except the sum of $41.85, and that there is now due plaintiff from defendant by reason thereof the sum of $412.65. There are sufficient facts alleged to apprise defendant, in a general way, what plaintiff’s claim is. It is true defendant is not informed of the amount claimed by plaintiff for each of the various items, but defendant’s remedy is by motion to require plaintiff to make the complaint more definite and specific in this particular. His remedy is not by demurrer. This is elementary. The facts alleged are, we think, sufficient from which the law raises an implied promise on defendant’s part to pay for the work performed, the machinery used, the twine furnished, and for the grain stored. It is well settled that under the Code system of pleading as contradistinguished from that of the common-law system, it is neither necessary nor proper to allege a promise on defendant’s part in actions to recover upon implied contracts. Pomeroy’s Code Remedies (3d Ed.) section 540. ÍWe think that the complaint at least as to some of the alleged causes of action therein contained, would be sufficient under the common counts in indebitatus assumpsit at common law. 2 Cbffty on Pleadings (16 Am. Ed.) pp. 27-35; 2 Enc. of Forms, page 297. This being true, it is firmly settled that the complaint is good under the Code. As said in Pomeroy’s Code Remedies, section 542: “The courts have almost unanimously * * * held that such complaints or petitions sufficiently set forth a cause of action in the cases where the declarations which they imitate would have been proper under the former practice” — citing many authorities. The learned author of this valuable work further says: “Notwithstanding the imposing array of judicial authority shown by the citations in the footnote, the courts of one or two states have refused to follow this course of decision and have pronounced such forms of complaint or petition to be in direct conflict with the correct principle of pleadings established by the Codes. Although these few cases cannot be regarded as shaking, or as throwing any doubt upon, the rule so firmly established in most of the states, they may be properly cited in order that all the light possible may [479] be thrown upon this particular question of interpretation” — citing two very early cases, one in Minnesota and the other in Oregon. Notwithstanding the criticism by Prof. Pomeroy of the majority rule thus announced, we consider it the safer and better rule to adopt. The function of the complaint is to inform defendant of the nature of plaintiff’s demand so that he may not be misled in the preparation of his defense. If the complaint does this in a general way, it is sufficient as against an attack by demurrer, although inartificially drawn. 31 Cyc. 101, and cases cited. Under the common counts it is, in most instances, averred that the thing furnished and labor performed were thus furnished or performed at defendant’s request, and also that defendant promised to pay for the same; but, in most instances, these averments are not required under the Code, for a succinct and accurate statement of the principle here involved, together with the citation of many authorities in support of our views as above expressed, see 1 Bates, PI., Pr. & Forms (1908 Ed.) pp. 208-212. For the foregoing reasons, the order appealed from is affirmed. All concur, except Spalding, J., dissenting.