Rauh v. Oliver

• Decision Date: 11 May 1904
• Citation: 77 P. 20,10 Idaho 3
• Parties: RAUH v. OLIVER
• Court: Idaho Supreme Court

77 P. 20

10 Idaho 3

RAUH v. OLIVER

Supreme Court of Idaho

May 11, 1904

DEMURRER-REVIEW ON APPEAL-PLEADING-TECHNICALITIES-NONSUIT-JUDGMENT OF DISMISSAL.

1. The action of the court in overruling defendant's demurrer to a complaint cannot be reviewed on an appeal taken by the plaintiff.

2. Under the provisions of our Code of Civil Procedure, the technicalities of pleading (under the common law) have been dispensed with, and the plaintiff need only state his cause of action in ordinary and concise language, whether it be in assumpsit, trespass or ejectment, without regard to the ancient forms of pleading, and the plaintiff can be sent out of court only when upon his facts he is entitled to no relief, either at law or in equity.

3. Under the provisions of subdivision 5 of section 4354 of the Revised Statutes, it is error for the court to grant a nonsuit before the plaintiff has introduced his evidence or offered to do so and rested.

(Syllabus by the court.)

APPEAL from District Court of Idaho County. Honorable Edgar C Steele, Judge.

Action to recover for services on a mail contract. Judgment for defendant. Reversed.

Judgment reversed and set aside and cause remanded, with instructions. Costs of this appeal awarded to the appellant.

James De Haven, Clay McNamee and D. W. Bailey, for Appellant.

The demurrer to the third, fourth and fifth separate defenses should have been sustained. (Fidelity Nat. Bank of Spokane v. Henley, 24 Wash. 1, 63 P. 1119; Bradley v. Root, 5 Paige (N. Y.), 632.) While the testimony of the appellant to the effect that he was employed by the respondent was probably not correct, according to the commonly accepted meaning of the word "employed," it was still within the allegations of the complaint. And even if there had been a variance between the allegations and the proof, that was no ground for a dismissal, as the complaint may be amended to conform to the proof. (Rev Stats. 1887, sec. 4226; Murray v. Meade, 5 Wash 693, 32 P. 780.) On a motion for a nonsuit, the court is bound to give the evidence the most favorable construction for the plaintiff that it will possibly bear. (Imhoff v. Chicago etc. R. Co., 22 Wis. 684; 6 Ency. of Pl. & Pr., p. 943, and notes.) Respondent's contention, which runs all through this case, that money due from United States cannot be assigned, is not true as a matter of law, as applied to the admitted facts in this case. (Hobbs v. McLean, 117 U.S. 567, 6 S.Ct. 870, 29 L.Ed. 940. See, also, Farmers' Nat. Bank v. Robinson, 59 Kan. 777, 53 P. 762.)

A. S. Hardy and Fogg & Nugent, for Respondent.

The judgment in this case is a judgment of nonsuit, and as appellant failed in proving his own case, the question of the sufficiency of the allegations of these separate defenses is entirely immateral and cannot be considered on this appeal. The ruling does not affect the judgment. (Rev. Stats. 1887, sec. 4824.) To the effect that the defendant's answer and questions affecting the same cannot be considered on nonsuit, they do not affect the judgment. (Sayward v. Carlson, 1 Wash. 29, 23 P. 830; Rensberger v. Britton, 31 Colo. 79, 71 P. 380.) A party should be bound by the allegations of his pleadings, deliberately made, and should not be allowed to obtain benefits from contradictory and inconsistent allegations therein. (Losch v. Pickett, 36 Kan. 216, 12 P. 822.) The law may recognize the common counts as suggested (and we do not think that under our system even that should have been permitted); but it certainly does not permit any such jumble of causes of action as attempted to be set up here--for labor performed, for money advanced to a third party entirely, for an alleged assignment, etc. (Buckingham v. Waters, 14 Cal. 147; Watson v. Railway Co., 41 Cal. 19; Cosgrove v. Fisk, 90 Cal. 75, 27 P. 56; Lamb v. Howbaugh, 105 Cal. 680, 39 P. 56 (57).) And the complaint is also ambiguous, and as the point was raised on demurrer, it should not have been permitted to stand. (Crow v. Hildreth, 39 Cal. 618.) The only allegations of the complaint which can be construed as alleging a contract of hiring at all are at variance both with the opening statement and with the evidence introduced as well as that offered. These variances are fatal. (McCord v. Seale, 56 Cal. 262; Morrison v. Bradley, Berden & Co., 5 Cal. 503; Cotes v. Campbell, 3 Cal. 192; Johnson v. Moss, 45 Cal. 515.) Appellant's third specification assigns as error the ruling of the court granting a nonsuit. This is the most material assignment to be considered, and the only point in the case. Plaintiff in his complaint at folio 5 alleges that the defendant "then and there promised and agreed to pay to said A. G. Smith and to his employee the sum of ." This promise made to Smith could not be enforced against the defendant by any one of the employees of Smith. (Chung Kee v. Davidson, 73 Cal. 522, 15 P. 100; Commercial Nat. Bank v. Portland, 37 Or. 33, 60 P. 563.) If plaintiff's complaint be tested by the theory on which he has elected to try the case and what he states it to be in the opening pages of his brief, it states no cause of action and the nonsuit is proper. (Richards v. Lake View Land Co., 115 Cal. 642, 47 P. 683; Brown v. Lapham, 22 Colo. 264, 44 P. 504; Posten v. Denver Con. Tram. Co., 11 Colo. App. 187, 53 P. 391; Vincent v. City of Pacific Grove, 102 Cal. 405, 36 P. 773.)

SULLIVAN, C. J. Stockslager, J., concurs. Ailshie, J., took no part in the decision. Did not sit at the hearing.

OPINION

The facts are stated in the opinion.

SULLIVAN, C. J.--

This is an action to recover for carrying United States mail from Mt Idaho to Florence, Idaho. It is alleged in the complaint that in December, 1898, one Holsclaw entered into a contract with the United States, wherein he contracted to carry the United States mail between Grangeville, Idaho, and Florence, Idaho, as a subcontractor, under what was known as the Underwood mail contract, and that the respondent Oliver was one of said Holsclaw's sureties for the faithful performance of the duties imposed by said contract; that in August, 1899, said Holsclaw failed to comply with the conditions of said contract and ceased to carry said mail on said route, and that the defendant Oliver, as one of the sureties aforesaid, assumed the duties and conditions of said contract and carried said mail from about August 1, 1899, to December 19, 1899; that on or about the last-named date respondent Oliver, as surety, as aforesaid, employed one A. G. Smith to carry said mail and agreed to pay said Smith and his employees for such services the sum of $ 2,200 per year, payable quarterly, and to pay the same out of the money received by him from the United States in payment for such services and expenses; that immediately after making said contract and agreement said Smith and plaintiff, relying on said promise, entered upon the duties of said contract and began carrying said mail, and did carry, the same for ninety-two days, and that during said time, and at the request of Smith, this appellant paid for and on account of expenses of said mail route the sum of $ 175 in order to enable Smith to fill said contract; that said work and labor was reasonably worth, and the said Smith and said Oliver agreed to pay therefor, the sum of $ 185, and on the ninth day of April, 1900, said Smith assigned to plaintiff $ 360 of the money due on said contract in two written instruments, which instruments are set forth in the complaint; that on or about the tenth day of July the said Oliver received from the United States in payment for carrying said mail on said route, from December 19, 1899, to April 6, 1900, the sum of $ 550, and that $ 360 thereof was received to and for the use of plaintiff and belonged to plaintiff, and is now due him in payment for services rendered and money paid for expenses as hereinbefore alleged; that on or about the sixth day of April, 1900, and at divers times thereafter, plaintiff demanded payment of said sum from the defendant, and that on or about December 14, 1900, the defendant promised and agreed to pay the same in full; that Smith is now insolvent and has been since September, 1900, and has resided outside of the state of Idaho. Then follows the prayer for judgment against the defendant for the sum of $ 300 and costs of the action, and plaintiff waives any further sum due from the defendant. The waiver was made in order to bring the amount sued for within the jurisdiction of the justice's court where this suit was first instituted.

To this complaint the respondent interposed a demurrer on numerous grounds, which demurrer was overruled by the court, and as no appeal was taken from the order overruling the demurrer, the action of the court therein cannot be reviewed on this appeal. It appears from the record that said complaint was the second amended complaint filed in said action. After the overruling of said demurrer the defendant answered, denying generally each and every allegation contained in the complaint and set up four separate defenses. As a second defense the appellant alleges that he received from said Holsclaw on or about July 10, 1900, on account of the mail contract mentioned in plaintiff's complaint, the sum of $ 427.50; that he received no other or greater sum; that on or about December 19, 1899, said Smith contracted with the defendant to furnish him with hay and grain to be used by him on the mail route mentioned in said complaint and also hired from defendant horses to be used on said route, and agreed to pay the defendant the reasonable worth and value of said hay and grain as defendant should from time to time furnish him, and also the reasonable use and value of the services of said horses, and that said Smith agreed with defendant that he might...