Langford v. Sanger

Wagner, Judge, delivered the opinion of the court. The question arising in this case grows wholly out of the-defectiveness of the petition. It is inaccurate to speak of the several parts in which the petition is divided as separate and independent counts; the relief prayed for in each and every one of them flows as damages out of the contract attempted to be pleaded in what is designated as the first count. The counts amount to nothing more than the evidence which the pleader has illogically inserted in the petition, and by which he intended to support his action, and which might be wholly disregarded and treated as surplasage had the written contract been well set out and declared upon. Damages naturally follow the breach of a-, contract, and the setting forth of the specifications of the evidence is faulty and vicious pleading. There is no cause of action charged in the petition, the [165] averment of performance by the plaintiffs is insufficient, and there is no allegation whatever of a breach by the defendants. Had the contract been properly declared on, and the breaches assigned, all the subsequent parts of the petition might have been rejected, and evidence would still have been admissible to enable the plaintiffs to recover whatever damages they had sustained in consequence of the non-performance by the defendants; but as no legal cause of action is stqted, the motion in arrest of judgment should, have- been sustained. The second instruction given by the court of its own motion is unexceptionable ; the first is subject to some criticism^ which can be obviated on a new trial. The judgment is reversed and the cause remanded, with leave to the plaintiffs to amend their petition. The other judges concur.