Booker v. Ray

Perkins, J. This was an action commenced while the code of 1843 was in force. The cause of action was set forth in a declaration, drawn according to the forms at common law. It was an alleged breach of contract for the erection of a building. At common law, even where the statute of frauds required a contract to be in writing, and it actually was so, it was not necessary that a copy of the writing should be made a part of the declaration, nor that the declaration shall aver that the contract was in writing. In this case the declaration described a contract for the erection of a building, and it described the building in parte, by diagrams, making them parts of the averments, thus : “the story is to be eight feet high in the clear, with three sets of purlins of suitable size, to be framed for the support of the roof; and posts are to be put in said building as designated in the following figures, viz.,” (then follows an accurate drawing, representing the frame of the building as it is to be [523] erected, showing its dimensions, and the number, position, size, &c,, of the several pieces of timber to be framed into it. D. D. Pratt and John JST. Pettit, for the appellants. We think an averment may be made sufficiently certain by this mode, and that those thus made in this case, are so. If diagrams may form a part of a valid contract, why not of a complaint upon such contract? Locke, in his work on the Human Understanding, says, in book 4, chap. 3, “ Diagrams, drawn on paper, are copies of the ideas in the mind, and not liable to the uncertainty that words cany in their signification.” A demurrer was, however, sustained to it below, and the case was dismissed. This was error, and the judgment must be reversed. Per Curiam. — The judgment is reversed, with costs. Cause remanded, with leave to amend so as to conform the pleadings in the cause to the new code of practice.