Underhill v. Smith

• Decision Date: 13 January 1922
• Docket Number: Civil 1908
• Parties: T. W. UNDERHILL, Appellant, v. CLARA SMITH, Administratrix of the Estate of AL. C. SMITH, Deceased, Appellee
• Court: Arizona Supreme Court

203 P. 335

23 Ariz. 266

T. W. UNDERHILL, Appellant, v. CLARA SMITH, Administratrix of the Estate of AL. C. SMITH, Deceased, Appellee

Civil No. 1908

Supreme Court of Arizona

January 13, 1922

APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Reversed and remanded.

Mr Henry C. Kelly, for Appellant.

Mr Harry C. Westover, for Appellee.

OPINION

McALISTER, J.

This action was begun by Al. C. Smith against T. W. Underhill upon an account assigned to him by W. M. Winn, but after trial, and before final judgment, the plaintiff died, and his administratrix, Clara Smith, was substituted. From a judgment for her in the sum of $288.23, defendant, Underhill, appeals.

Appellant assigns as error the overruling of his general and special demurrers to the following complaint:

(Title of court and cause, following which is paragraph 1, giving residence of parties.)

"(2) That prior to May 1, 1920, the said defendant had W. M. Winn of Yuma, Arizona, do certain work upon a certain car belonging to him the said T. W. Underhill.

"(3) That at the special request and instance of the said defendant the said W. M. Winn performed the required and requested work upon the said car or cars.

"(4) That prior to May 1, 1920, the said defendant purchased from the said W. M. Winn certain supplies for his said car or cars.

"(5) That the said defendant became indebted to the said W. M. Winn upon an open book account.

"(6) That the said defendant paid to the said W. M. Winn the sum of $500. "(7) That there is still due and owing upon the said open book account the sum of $308.23.

"(8) That the said defendant has been requested to pay the said sum at divers times, but has refused and continues to refuse to pay the said sum of $308.23.

(9) That prior to the commencement of this action the said account was assigned to the plaintiff herein for a valuable consideration.

"(10) That there is now due and owing from the defendant to the plaintiff the sum of $308.23, which the defendant refuses to pay."

The special demurrer is that it cannot be determined from this complaint "whether the claim of the plaintiff is based upon work done, materials furnished, or upon the open book account mentioned in the complaint." It will be observed that paragraphs 2, 3, and 4 allege the doing of certain work upon and the furnishing of certain supplies for a car or cars belonging to T. W. Underhill at his request, but the complaint contains no further reference to either the labor performed or material furnished; the value of both, as well as the fact of payment or nonpayment, being entirely omitted. Standing alone, these three paragraphs do not state a cause of action, for clearly it is no ground for complaint that one furnish labor and material for another at his request.

It will be noted that paragraph 5 alleges that "defendant became indebted to the said W. M. Winn upon an open book account," and that No. 6 sets up the payment of $500 to W. M. Winn, but fails to state what it was for, though this appears inferentially from the succeeding paragraph, alleging a balance of $308.23 "still due and owing upon the said open book account." The two together justify the conclusion that the $500 paid W. M. Winn was in settlement pro tanto of the account upon which the balance of $308.23 is still due. There appears no connection, however between the indebtedness upon the open book account and the labor and material furnished for defendant's car. If the one arose out of the other, or is based thereon,...