Thomas Mfg. Co. v. Erlandson

• Decision Date: 26 November 1915
• Parties: THOMAS MFG. CO. v. ERLANDSON et al.
• Court: North Dakota Supreme Court

32 N.D. 144

155 N.W. 652

THOMAS MFG. CO.

v.ERLANDSON et al.

Supreme Court of North Dakota.

Nov. 26, 1915.

Syllabus by the Court.

Defendants were served with the summons and complaint in this action the 5th of August, 1913. September 12, 1913, they appeared by attorney and demanded a bill of particulars. After argument such demand was refused, and defendants were given ten days in which to file an answer. Instead of complying with the order, defendants on the 3d of October, 1913, interposed a demurrer raising substantially the same grounds covered by the motion. Plaintiff then moved to strike the demurrer as frivolous. This notice failed to state any day of any month or year for its return, but merely that it was returnable before district judge at the village of Mott on Wednesday at 1 o'clock p. m. or as soon thereafter as counsel could be heard. The attorney upon whom this notice was served, however, was told at the time that said motion was returnable October 15, 1913, and was invited by plaintiff's attorney to ride with him in his automobile to said hearing. Only two terms are held each year in Mott, and the dates thereof are fixed by law. The motion to strike the demurrer was not opposed, and was allowed by the trial court. Under the circumstances, it is held, that the defendants were duly apprised of the return day of the motion to strike the demurrer, and were not justified in allowing the matter to go by default.

The filing of a demurrer was in violation of the order which allowed the filing of an answer.

It was not error to strike the demurrer as frivolous because (a) defendants had not obtained leave of court to interpose such demurrer; (b) the complaint was not upon its face demurrable; and (c) defendants were in default and presented no affidavit of merits. The order of the trial court refusing to vacate said default judgment is affirmed.

Appeal from District Court, Adams County; Crawford, Judge.

Action by the Thomas Manufacturing Company, a corporation, against O. A. Erlandson and another, copartners doing business as the Erlandson Lumber Company. From judgment for plaintiff, defendants appeal. Affirmed.E. C. Wilson, of Hettinger, for appellants. Boehm & Jackson, of Hettinger, for respondent.

BURKE, J.

On the 5th day of August, 1913, the defendant Erlandson was personally served with the summons and complaint in this action. The complaint reads as follows:

“The plaintiff complains and alleges:

I. For a first cause of action that the plaintiff is a corporation duly organized and existing under and by virtue of the laws of the state of Ohio.

II. That the defendants O. A. Erlandson and A. Erlandson are copartners, doing business under the fictitious firm name and style of the Erlandson Lumber Company, with their main office in the village of Hettinger, Adams county, N. D.

III. That on or about the 10th day of August, 1910, the plaintiff and the defendants hereinentered into an agreement and contract in writing by which the plaintiff agreed to sell and deliver and the defendants agreed to purchase and accept 60 Thomas grain drills, said drills to be delivered to said defendants between the 1st day of January, 1911, and the 20th day of September, 1911.

IV. That thereafter by mutual agreement between the plaintiff and the defendants herein and before the delivery of the said grain drills said agreement or contract was modified, wherein the plaintiff agreed to deliver and the defendants agreed to accept 45 Thomas grain drills to be delivered to said defendants at the same time as above specified for the said 60 grain drills.

V. That between the 11th and the 20th days of January, 1911, pursuant to the said contract and agreement the plaintiff delivered to the said defendants the said 45 Thomas grain drills, amounting in all to the sum of three thousand eight hundred fifty-nine dollars ($3,859.00), and in addition thereto at the same time certain extras for said drills amounting to the sum of sixty-five dollars ($65.00), amounting in all to the sum of three thousand nine hundred twenty-four dollars ($3,924.00), no part of which has ever been paid except as hereinafter stated, the same being long past due.

VI. For a second cause of action, the plaintiff alleges the foregoing preliminary statement of facts, and further alleges that between the 20th day of January, 1911, and the 19th day of August, 1911, the plaintiff sold and delivered to the said defendants at their special instance and request certain repairs for the said drills, amounting in all to the sum of two hundred forty-seven and 39/100 dollars ($247.39), no part of which has ever been paid except as hereinafter stated, the same being now past due and payable.

VII. For a third cause of action herein the plaintiff alleges the foregoing preliminary statement of facts, and further alleges that on or about the 2d day of March, 1911, at the special instance and request of said defendants, the plaintiff sold and delivered to said defendants certain hay tools and implements amounting in all to the sum of six hundred twenty-eight dollars ($628.00), no part of which has ever been paid except as hereinafter stated, the same being past due and payable.

VIII. That there is now due and owing to the plaintiff from the said defendants on account of the above and foregoing causes of action the sum of four thousand seven hundred ninety-seven and 39/100 dollars ($4,797.39) less the sums of one thousand seven hundred thirteen and 25/100 dollars ($1,713.25) credits allowed defendants for cash paid during the months of February, April, and June, 1911, and October, 1912, together with storage for one year on certain machinery of said plaintiff now in charge of the defendants, together with interest thereon at the rate of 8 per cent. per annum according to said agreement from and after November 1, 1911.

Wherefore plaintiff demands judgment against said defendants and each of them for the sum of three thousand eighty-four and 14/100 dollars ($3,084.14) together with interest thereon at the rate of 8 per cent. per annum from and after November 1, 1911, with its costs and disbursements.”

On the 12th day of September, E. C. Wilson, a member of the bar of this state, filed his general appearance on behalf of both of the defendants. At the same time he served upon plaintiff's attorneys a notice of motion to make said complaint definite and certain, which motion was in the following words:

“Take notice, that at chambers in Dickinson, N. D., on Wednesday, the 27th day of August, 1913, at the hour of 3 o'clock in the afternoon of that day, defendants will make a motion to said court, and therein ask that the complaint in the above-entitled action be amended by making the same more definite and certain, in the respects, to wit:

First. As to whether the grain drills mentioned in paragraphs ‘III’ and ‘IV’ were contracted for at an agreed price, or whether the charges therefor are the reasonable values thereof. Whether the price or value of each drill is the same, and if not the same, then by stating the different values and prices. Naming the state in which the agreement and contract, mentioned in paragraph ‘III’ was entered into. Naming the place where the delivery of the drills mentioned in paragraph ‘V’ was made.

Second. Stating the true firm name and style of the defendants, in place of the ‘fictitious' name and style as alleged in paragraph ‘II’ of the complaint.

Third. As to whether or not it is the claim of the plaintiff, that defendants bought the ‘certain extras' referred to in paragraph ‘V’ and, if so, then whether same were so bought under a contract, or were simply delivered at the request of the defendants, and whether the price that is charged therefor is the agreed price or is the reasonable value thereof.

Fourth. What is meant by the words ‘foregoing preliminary statement of facts' as used in paragraph ‘VI’ and as to whether the $247.30 there named is the agreed price of the repairs there mentioned or is the reasonable value thereof.

Fifth. What is meant by the words ‘foregoing preliminary statement of facts' as same are used in paragraph ‘VII’ and what is meant therein by the words certain hay tools and implements'-whether they be pitchforks or hay tedders, and as to the number of each for which recovery is sought, and as to whether the $628 there mentioned is a contract price or is the reasonable value of such tools and implements. Giving the number and kind of each of such tools and implements and the price or value of each.

Sixth. At what place or places and in what state, plaintiff delivered to defendants the various extras, repairs, tools, and implements mentioned in said complaint.

Seventh. As to...