Pefley v. Johnson

• Decision Date: 07 October 1890
• Parties: PEFLEY v. JOHNSON.
• Court: Nebraska Supreme Court

30 Neb. 529

46 N.W. 710

PEFLEY

v.JOHNSON.

Supreme Court of Nebraska.

Oct. 7, 1890.

Syllabus by the Court.

1. Under the Code pleadings are to be liberally construed, and if, with such construction, a petition states a cause of action against a defendant and in favor of the plaintiff, a demurrer thereto should be overruled.

2. The facts on which a plaintiff bases his right to recover should be stated in a systematio and orderly manner, and not by making a mere exhibit a part of the petition. An exhibit, however, if made a part of the petition, is to be considered, and if the facts therein stated, in connection with those in the petition proper, show a liability of the defendant to the plaintiff, a demurrer that the facts stated therein are not sufficient cannot be sustained.

Error to district court, Douglas county; DOANE, Judge.J. W. West, for plaintiff in error.

Holmes, Wharton & Baird, for defendant in error.

MAXWELL, J.

A demurrer to the petition was sustained in the court below and the action dismissed. The question presented to this court is: Does the petition, when construed liberally, as required by the Code, state a cause of action? The petition, and exhibit which is made a part of it, are as follows: “Plaintiff, for cause of action, states that on or about the 2d day of April, 1888, plaintiff entered into a contract in writing with defendant, Lenora Z. Johnson, a copy of which contract is hereto attached, marked ‘Exhibit A,’ and made a part hereof. That by the terms of said contract there was due from defendant to plaintiff on the 2d day of February, 1889, the one certain payment in the sum of $410, with interest at the rate of 8 % on the sum of $2,950, from the 2d day of April, 1888, and interest thereon to date, all of which is now due and unpaid.” Exhibit A: “This agreement, made the 2d day of April, A. D. one thousand eight hundred and eighty-eight, between Isaac Pefley and J. K. Reid, the party of the first part, and Lenora Johnson, party of the second part, witnesseth: That said party of the first part agrees to sell to said party of the second part, and the said party of the second part agrees to purchase of the said party of the first part, on the terms hereinafter mentioned, the following real estate, situate in the county of Sarpy, and state of Nebraska, known and described as lots 1 and 28, in block 3, in Union Pacific subdivision of blocks 6, 7, 8, and 9, in Allbright's choice addition to South Omaha, as surveyed, platted, and recorded. The said party of the second part agrees to pay to the said Isaac Pefley for said land the sum of $5,000 in payments as follows: $2,950 upon the delivery of this contract; $410 Sept. 2, 1888; $410 February 2, 1889; $410 Sept. 2, 1889; $410 February 2, 1890;...