Duval v. American Telephone & Telegraph Co.

Dodge, J. After careful consideration of the record, we find no reason to disagree with the views of the trial court either as to the construction and effect of the pleadings or to the proper method of protecting the rights of the parties. In the ultimate analysis the purpose of all pleading is to fairly [507] and intelligibly notify the opposite party-of the facts claimed to exist as basis for the pleader’s demand. All due liberality is to be accorded sincere attempts to accomplish this purpose as tersely as possible, but when the pleading, either by itself or in connection with other acts, naturally tends not to inform of, but to divert attention from, the real fact relied on, it merits condemnation, not favor, from the courts. We do not assert that a-mere allegation of the making of a contract according to a specified legal effect can never be established by proof of. a written contract subsequently modified by parol, although, if the pleader has any reason to suppose the latter fact is controverted, he more'certainly performs his duty by setting it forth specifically. Lynch v. Henry, 15 Wis. 631; Ninman v. Suhr, 91 Wis. 392; Computing S. Co. v. Churchill, 109 Wis. 303, 307; Elting v. Dayton, 17 N. Y. Supp. 849. Neither do we question that often allegation of contracting on one date may be satisfied by proof of a different day. Indeed, we need not even hold that the allegation of the present complaint that a contract to a certain legal effect was made on June ?th might not, if it stood alone, unembarrassed by other circumstances, justify and be satisfied by the proof offered that a different contract was made on that day and modified on the next. However, such allegation would fall so far short of suggesting the fact sought to be proved that slight circumstances .would lead to belief in. a purpose to delude, either actual or imputed, from the obvious tendency to do so. The allegation in this complaint is ambiguous. It may mean merely to assert the pleader’s construction of the contract confessedly made on that day, and therefore present to the mind of the defendant, or it may perhaps mean that such conceded contract was modified by another. If, as defendant contends, and as may be the fact, no modifying contract was afterward made, the allegation would not convey any such suggestion to his mind, nor serve to notify him of the necessity of coming to trial with evidence [508] to disprove such, subsequent transactions. When, however, after defendant has set forth in his counterclaim that the contract in fact made on June Ith was in writing, and in the exact words quoted, and the plaintiff by reply “admitted” that on the day named he entered into a contract “as set forth in the complaint,” no inference was reasonable save that the contract intended by the complaint was that attached by copy to the counterclaim. Plaintiff, by replyj could admit no other, for the counterclaim alleged none. If he had purposed fairly to notify defendant that he contended for another and different contract, he would have so declared by denial or counter allegation, not by admission. In the light of these considerations, we cannot but agree with the trial court that the plaintiff must be held to have intended to notify defendant that he stood on the written contract, and no other, because the words of his complaint, as construed by the reply, could not reasonably mean anything else. Evidence offered of a different contract was therefore inadmissible. If, at the trial, plaintiff wished to change his position, and thus render necessary other defensive preparation, the court treated bfm with sufficient favor in permitting such action upon condition of payment of defendant’s witness fees. We find no error. By the Court. — Judgment affirmed.