Jetmore v. Anderson

BEAN, J. 1. The plaintiff’s complaint does not allege that defendant promised to pay plaintiff any specified sum for the alleged services and contains no allegation of the reasonable value of the same. The agreement of defendant to pay is denied by the [255] answer, which, consists of a general denial of the gist of the complaint except as to the rendition of certain services. The motion to make more definite and certain is directed to the further and separate answer. This left the denials of the answer intact and raised a material issue. Neither the main answer nor the further and separate answer were stricken out for failure of defendant to plead the items of payment. In the absence of proof plaintiff was not entitled to a judgment for more than $25 as for want of an answer. An answer having been filed in the Justice’s Court and not demurred to or disposed of in any way, the judgment from which an appeal was taken to the Circuit Court was not one “for want of an answer” within the meaning of Section 2455, Or. L. 2. Referring to the further and separate answer, as a general rule, the failure of a party to comply with an order of court to make a defective pleading more definite and certain in particular respects, may be a cause for striking the pleading from the files, or the court may preclude- evidence upon the trial in support of the defective allegations: 6 Ency. PL & Prac. 279, and note 10. In Hughes v. Chicago etc. R. Co., 45 N. Y. Super. Ct. Rep. 114, it was held that, if after striking out the uncertain allegations of an answer, other issues would remain to be tried, an order giving the plaintiff the right to apply for judgment unless defendant amended was erroneous. An appeal from such an order was allowed. The case involved over a million dollars. The judgment of the Justice’s Court in the case at bar on the pleadings, when a' material issue was tendered thereby, was improper: 31 Cyc. 608; Pacific Mill Co. v. Inman, 50 Or. 22 (90 Pac. 1099); Willis v. Holmes, 28 Or. 265 (42 Pac. 989). The only judgment to which plaintiff [256] was entitled, as appears from the pleadings, was for the snm of $25: Section 79, Or. L.; 31 Cyc. 613. Mere lack of definiteness of a statement of facts in an answer will not warrant a judgment for plaintiff: 31 Cyc. 615. 3. The motion to make the answer in this case more definite corresponds to, and rests upon, the same principles as a demand for an itemized statement of account or hill of particulars which would have answered all purposes of the case. "Where a party refuses to specify the items of an account, the court will refuse to allow him to give evidence thereof: Section 84, Or. L.; Stocklen v. Barrett, 58 Or. 281, 283 (114 Pac. 108). No more drastic rule should have been applied in the present case. 4. It may well be doubted if the separate answer of defendant is so “indefinite or uncertain that the precise nature of the defense is not apparent.” Section 86, Or. L. Plaintiff does not state in his motion that such is the fact/ Neither the complaint nor answer is perfect. The provisions of Section 2464, Or. L., for the amendment of the pleadings on an appeal from a Justice’s Court indicate that the law does not contemplate that the same precision in pleading will be observed in a Justice’s Court as in a court of record. The cause should have been tried upon the issues made, and the amount due plaintiff from defendant determined. Plaintiff cites and relies upon the case of Long v. Sharp, 5 Or. 439. In that case a portion of the answer was stricken, and a demurrer to the remaining part was sustained. Nothing remained of the answer, and the plaintiff was entitled to a default. The case is not in point here. The judgment of the Circuit Court is reversed and the cause remanded for a new trial. Reversed and Remanded.