McPherson v. Hattich

• Decision Date: 30 March 1906
• Docket Number: Civil 921
• Citation: 10 Ariz. 104,85 P. 731
• Parties: JOHN McPHERSON, Plaintiff and Appellant, v. B. HATTICH, Defendant and Appellee
• Court: Arizona Supreme Court

85 P. 731

10 Ariz. 104

JOHN McPHERSON, Plaintiff and Appellant, v. B. HATTICH, Defendant and Appellee

Civil No. 921

Supreme Court of Arizona

March 30, 1906

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. John H. Campbell Judge. Affirmed.

The facts are stated in the opinion.

S. W Purcell, and Worsely & Van Dyke, for Appellant.

No evidence or proof on non-payment is necessary, even when the action is upon a simple contract and where the first and only breach is the non-payment of the amount due. 22 Am. & Eng Ency. of Law, and cases cited. Proof of the non-payment of the claim is not required even in California and New York (which inconsistently insist upon the allegation of non-payment, even when the facts are alleged which show a prima facie indebtedness). Melone v. Ruffino, 129 Cal. 514, 79 Am. St. Rep. 123, 62 P. 93, overruling early cases; Cochran v. Reich, 91 Hun, 440, 36 N.Y.S. 233. The non-payment was sufficiently alleged under the ruling in Allen v. Patterson, 7 N.Y. 476, 57 Am. Dec. 542, and Messenger v. Woge, 20 Colo.App. 275, 78 P. 314. The lien being made a part of the complaint, the statement of indebtedness becomes one of the allegations of the complaint and will be presumed to be due at the time of the bringing of the action. Lawson on Presumptive Evidence, rule 29; Jones on Evidence, sec. 53; Rice on Evidence, 69, 95, 98. The better rule, and the one which conforms to the spirit of our code pleading in that where the facts set out in the complaint show a prima facie case of indebtedness, no formal statement of non-payment is necessary, but non-payment is presumed as a conclusion of law. Hummel v. Moore, 25 F. 380; Denver & R.G. Co. v. Wilson, 4 Colo.App. 355, 36 P 67; State ex rel. v. Peterson, 142 Mo. 526, 39 S.W. 453, 40 S.W. 1094; Wheeler v. Tensley, 75 Mo. 458; Stevens v. Thompson, 5 Kan. 305; St. Louis Electric etc. Ry. Co. v. Grove, 39 Kan. 731, 18 P. 958; Ebensen v. Hover, 2 Colo.App. 467, 33 P. 1008; Abbott's Trial Brief Pleadings, sec. 191, p. 174, sec. 638, p. 538; Salisbury v. Stinson, 10 Hun, 242; Hubler v. Pullen, 9 Ind. 273, 68 Am. Dec. 620; Bliss's Code Pleading, sec. 357; Jones on Law of Evidence, sec. 176 and cases cited; McKyring v. Bull, 16 N.Y. 297, 69 Am. Dec. 696; Smith's Appeal, 52 Mich. 415, 18 N.W. 195. The universal rule is that payment is an affirmative defense and must be alleged. Hummel v. Moore, 25 F. 380; Lent v. New York etc. Ry. Co., 130 N.Y. 504, 29 N.E. 988; Hubler v. Pullen, 9 Ind. 272, 68 Am. Dec. 620; Edson v. Dillaye 8 How. Pr. 273; Van Santvoord's Pleadings, pp. 406, 407, 455; 16 Ency. of Plead. & Prac., p. 174. Defendant's failure to demur and in answering and proceeding to trial waived all formal defects or irregularities in the complaint, if any. Bliss's Code Pleading, sec. 436; 6 Ency. of Plead. & Prac., p. 372; Messenger v. Woge, 20 Colo.App. 275, 78 P. 314; Bowen v. White, 26 R.I. 68, 58 A. 252. The allegation of non-payment being a formal allegation and "not a necessary ingredient in a cause of action," as decided in Melone v. Ruffino, 129 Cal. 514, 79 Am. St. Rep. 123, 62 P. 93, and not being an allegation which required proof to sustain, is a mere formal pleading in the states where required. Frisch v. Caler, 21 Cal. 71; Green v. Palmer, 15 Cal. 412, 76 Am. Dec. 492.

The breach of the contract in this action was not non-payment, but the repudiation and abandonment of and refusal of the defendant to permit plaintiff to complete the performance of the contract, and the said repudiation, abandonment and refusal of defendant to allow plaintiff to complete the contract obviated the necessity of performance and gave plaintiff the right to sue at once for breach of the contract. Clark on Contracts, sec. 272, 649; 7 Wait's Actions and Defenses, 425; 7 Am. & Eng. Ency. of Law, p. 150, and cases; 6 Cyc. 742; Bennett v. Morton, 46 Minn. 113, 48 N.W. 678; Haskell v. McHenry, 4 Cal. 411; and brief in note to Timberlake v. Thayer, 24 L.R.A. 231.

As applied to the services of an architect. Hutchinson v. Conway, 34 Nova Scotia, 554; Havens v. Donahue, 111 Cal. 297, 43 P. 962.

The said breach relieved the necessity of demand. 7 Am. & Eng. Ency. of Law, p. 150; 7 Wait's Actions and Defenses, 364 and 366. Also the necessity of alleging non-payment, for the breach was a repudiation of the contract and that only needs to be alleged. Franz v. Bieler, 126 Cal. 179, 56 P. 249, 58 P. 466; Wise v. Hogan, 77 Cal. 184, 19 P. 228.

Kingan & Wright, for Appellee.

The breach of the contract did not lie in the repudiation of same by Hattich, but it did lie, if at all, in the non-payment of the contract price by Hattich. The breach in all contracts which provide for the payment of money lies in the non-payment of the money. "In an action on a contract for the payment of money, it must be alleged that the defendant has not paid the indebtedness for which the action is brought. Many authorities are cited in support of this contention." 4 Ency. of Plead. & Prac., p. 942. See Richards v. Travellers' Ins. Co., 80 Cal. 505, 22 P. 939. Facts material to a plaintiff's cause of action and essential to be proved, to entitle him to a judgment, must be pleaded. No presumption can be indulged in that the defendant has failed in his duty or omitted to perform his contract obligation. In an action upon an alleged indebtedness, an allegation in the complaint of non-payment is essential. Lent v. New York etc. Ry. Co., 130 N.Y. 504, 29 N.E. 988.

OPINION

SLOAN, J.

-- This suit was brought by appellant, John McPherson, against appellee, B. Hattich, in the District court of Pima County to recover upon a contract between appellant and appellee, wherein the former agreed to draw plans and specifications as an architect for a certain building to be erected upon a lot in the city of Tucson owned by appellee, and to superintend the construction thereof for a stipulated per cent of the cost thereof, and wherein the appellee agreed to pay for such services at the rate of the percentage aforesaid; and also to foreclose a lien filed by the appellant upon said property for the amount of said agreed compensation. The notice of lien was referred to in the complaint as constituting a part thereof, and attached to the same as an exhibit. The complaint charged that appellant, after he had partially performed the services agreed upon, was prevented from further performing said services by the acts of appellee. There was no allegation in the complaint that the agreed compensation had not been paid by appellee, nor was there any direct allegation that any sum was due appellant from appellee by reason thereof. There was a statement in the notice of lien that the sum of seven hundred and fifty dollars was due appellant from appellee as compensation due under said contract at the agreed per cent of the cost of said building. The answer filed by the appellee admitted the residence of the parties, the ownership of the property described in the complaint, the filing of the notice of lien as alleged therein, and denied the remaining allegations of the complaint. The cause was tried to a jury. The evidence put in by plaintiff related to the making of the contract sued upon, the work done by him under the contract, and the refusal of appellee to permit appellant to proceed with the work of drawing plans and specifications for the building, and to superintend its erection. No proof was offered or put in by appellant showing non-payment on the part of appellee of the agreed compensation. At the conclusion of appellant's case counsel for appellee moved the court to instruct the jury to return a verdict in his favor on the ground that the appellant had not made out his case. Thereupon the court did so instruct the jury, and a verdict for the appellee was returned. In accordance with the verdict the court entered judgment in favor of the appellee and against the appellant. From the ruling of the court denying appellant's motion for a new trial and from the judgment, the appeal...