Porter v. Allen
| Decision Date | 20 May 1902 |
| Citation | 8 Idaho 358,69 P. 105 |
| Parties | PORTER v. ALLEN |
| Court | Idaho Supreme Court |
DEMURRER TO COMPLAINT.-Sustaining demurrer to complaint held error.
MOTION TO STRIKE.-Sustaining motion to strike out parts of the complaint, held error. Complaint in an action for damages must contain a statement of the facts constituting the cause of action in ordinary and concise language. The facts must be sufficiently set out to apprise the defendants of what plaintiff expects to prove.
PLEADING A CONTRACT.-A contract may be pleaded in haec verba or according to its legal effect. It may be attached as an exhibit to the complaint, and by apt reference and allegation made a part of it with the same effect as though it were copied into the complaint.
CONSTRUCTION OF PROVISIONS OF CONTRACT.-Where it it provided in a lease that the leased property shall be returned to the lessor in as good condition as when leased-damages by elements excepted-and the property is destroyed by reason of the lessees banking fire in the furnaces of the leased property and failing to keep a watchman as stipulated in the lease the lessees are liable for the value of the property thus destroyed.
SAME.-Where a lease provides that in case of a breach of its provisions and the continuance thereof for ten days, such breach and continuance shall terminate the lease, and it is further stipulated in such event that all improvements and machinery should inure to and be the property of the lessor, and the mill was burned by reason of the lessee's failure to keep a watchman as provided in said lease, the lessees are liable for the value of the mill so burned, and cannot relieve themselves of such liability by turning over to the lessor the ashes and ruined machinery of such mill as liquidated damages.
INTENTION OF PARTIES.-The intention of parties to a contract should be ascertained if possible and given effect.
CONSTRUCTION OF CONTRACT.-Where it is agreed by lessees to keep a watchman during the active operations of the mill, and the mill is run in the daytime and fire banked in the furnaces for the night it is the duty of the lessees to keep a watchman during the night.
(Syllabus by the court.)
APPEAL from District Court, Nez Perces County.
Judgment of dismissal reversed and set aside, and cause remanded, with instructions. Costs of this appeal awarded to appellant.
I. N. Smith and George W. Tannahill, for Appellant.
The covenant to repair is a general covenant, and as binding on the respondents on the facts shown, because under that covenant they must rebuild if the loss by fire was caused by human agency, either on the part of themselves or servants or of a stranger. (Polack v. Pioche, 35 Cal. 416, 95 Am. Dec. 115, and note; citations under 2 Notes on Cal. Cases; Abby v. Billups, 25 Miss. 618.) The complaint here, however, shows that "human agency" which caused this fire to be directly attributable to defendants. Under such state of facts, there is no case which exempts them. (See Porter v. Tull, 6 Wash. 408, 33 P. 965, 22 L. R. A. 613, collating cases.) In United States v. Clark 94 U.S. 53, 24 L. ed. 65, "a covenant in a lease that the tenant shall keep the premises in good order, and deliver the same in as good order as they are now, on the expiration of the lease, binds the tenant to rebuild in case the premises should be destroyed by fire." ( Acts of God are such, in a legal sense, which do not happen through human agency, such as storms, lightning and tempests. The rule is without exception that the provision for "liquidated damages" is nothing but a "penalty" in nature, regardless of what the contracting parties may have called it. This action is on breach of covenant. (5 Ency. of Pl. & Pr. 344, note 1.) This being true, and the contract providing penal matter, the plaintiff can elect. This is a rule of universal application. (Haggart v. Morgan, 5 N.Y. 422, 55 Am. Dec. 350, and note; 5 Ency. of Pl. & Pr. 344, note 1; Green v. Kelly, 18 N.J.L. 246 (covenant to repair); Martin v. Taylor, 1 Wash. C. C. 1, F. Cas. No. 9166, citing cases; White v. Arleth, 1 Bond, 319, F. Cas. No. 17,536.) It is error for the court to strike material parts of the pleadings. (Warren v. Stoddart, 6 Idaho 692, 59 P. 540.) The allegations asked to be stricken take out the allegation of the complaint referring to the admission of a watchman. Again, this shows the construction of the expression "during the active operation of the mill" to have been placed upon it by the parties, to mean that a watchman must be kept at night. (State v. Cass Co. Commrs., 60 Neb. 566, 83 N.W. 733; Marande v. Texas etc. Ry. Co., 184 U.S. 173, 22 S.Ct. 340; Dunton v. Niles, 95 Cal. 494, 30 P. 762; Bliss on Code Pleading, p. 244, secs. 150, 246, 247; 4 Ency. of Pl. & Pr. 606; Henke v. Eureka Endowment Assn., 100 Cal. 429, 34 P. 1089; 5 Ency. of Pl. & Pr. 363; 17 Ency. of Law, 2d ed., 12.)
James E. Babb, for Respondents.
Each of three causes of action in the complaint of appellant is founded upon covenants in the lease. Those covenants are in no way pleaded in the complaint, other than by setting forth the lease as "Exhibit A" of the complaint at the end of, and entirely outside of, the complaint. It results, therefore, that the covenants relied upon are not sufficiently pleaded according to the rules of code pleading, and the complaint is subject to the demurrer sustained thereto. (Hartford Fire Ins. Co. v. Kahn, 4 Wyo. 364, 34 P. 895; Johnson v. Home Ins. Co., 3 Wyo. 140, 6 P. 729; Guadalupe County v. Johnston, 1 Tex. Civ. App. 713, 20 S.W. 833; Miles v. Mays, 16 S.W. 540 (Tex.) .) The general rule is that each portion of a contract is considered and construed with reference to every other portion thereof. Here is an exception of liability on account of damage to the premises caused by elements. It necessarily relieves the lessees from every covenant at any place in the lease in respect of which they would be liable in case of damage to the premises caused by the elements. (See Taylor on Landlord and Tenant, 8th ed., sec. 360; Allan v. Culver, 3 Denio, 384, 17 N.Y. Com. Law, 361; Ball v. Wyatt, 8 Allen, 275; Van Wormer v. Crane, 51 Mich. 363, 47 Am. Rep. 582, 16 N.W. 686.) The present action, being on a contract, cannot be amended from contract to tort. (1 Ency. of Pl. & Pr. 567; Ramirez v. Murray, 5 Cal. 222; Hackett v. Bank of Cal., 57 Cal. 535; Wheeler v. West, 78 Cal. 95, 20 P. 46.) Matters of tort cannot be joined in a complaint in an action by contract. (Stark v. Wellman, 96 Cal. 400, 31 P. 259.) Some of the matters stricken out would be relevant only in an action ex delicto, and remaining in were not sufficient to state a cause of action ex delicto, and therefore were irrelevant. Other matters stricken out were evidentiary conclusions, matters of law, etc. The grounds of uncertainty specified in the demurrer were also well founded, and the judgment should be affirmed for this reason, if no other. Inconsistency is a ground of demurrer for uncertainty. (Blasingame v. Home Ins. Co., 75 Cal. 633, 17 P. 925; Heeser v. Miller, 77 Cal. 192, 79 P. 375.)
This action arose out of an alleged breach of certain covenants in a lease whereby the appellant, who was plaintiff in the court below, leased to respondents certain premises and a sawmill thereon situated, about two miles easterly of the city of Lewiston, on the Clearwater river. By reason of an alleged breach of certain covenants of said lease the appellant seeks to recover the value of said sawmill, which was destroyed by fire during the continuance of said lease; also damages for the failure of respondents to furnish steam with which to operate a pulsometer, and for three months' rent of said premises and sawmill. The covenants of said lease on the part of respondents upon which this action is based are as follows:
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