Weber v. Lewis

• Decision Date: 09 April 1910
• Parties: FRANK WEBER v. W. J. LEWIS
• Court: North Dakota Supreme Court

126 N.W. 105

19 N.D. 473

FRANK WEBER v. W. J. LEWIS

Supreme Court of North Dakota

April 9, 1910

Appeal from LaMoure County Court; Baker, J.

Action by Frank Weber against W. J. Lewis. From an order overruling a demurrer to the complaint, defendant appeals.

Affirmed.

Davis Warren & Hutchinson, for appellant.

Essential facts must be stated in unequivocal language, not left to be inferred. 1 Estee's Pl. (4th Ed.) 166; Moore v Besse, 30 Cal. 570; Hicks v. Murray, 43 Cal 522; Elwood v. Gardner, 45 N.Y. 349; First National Bank v. Laughlin, 4 N.D. 391, 61 N.W. 473; Jasper v. Hazen, 2 N.D. 401, 51 N.W. 583; I Estee's Pl. (4th Ed.) 218; Green v. Palmer, 15 Cal. 412; Northern Railway Co. v. Jordan, 87 Cal 322; Cordier v. Schloss, 12 Cal. 147; Riddle v. Baker, 13 Cal. 302; Buena Vista, etc., Co. v. Tuohy, 107 Cal. 243; 4 Cyc. Pl. & Pr. 600; McConnoughey v. Weider, 2 Iowa 408; Miller v. Van Tassel, 24 Cal. 49; Baltzell v. Nosler, 63 Am. Dec. 466; Thompson v. Munger, 65 Am. Dec. 176; Conaughty v. Nichols, 42 N.Y. 86; Addison v. Lake Shore & M. S. R. Co., 48 Mich. 155.

W. C. Lasell, for respondent.

If complaint is good on any theory, demurrer will be overruled. 10 Cur. Law, 1204; Douglas, etc., Ry. Co. v. Swindle, 2 Ga.App. 550, 59 S.E. 600; Oolitic Stone Co. v. Bridge, 80 N.E. 441; Dresser v. Mercantile Trust Co., 108 N.Y.S. 577; Thompson v. Mills, 101 S.W. 560; Grain v. Aldrich, 38 Cal. 514, 99 Am. Dec. 423; Morse v. Swan, 2 Mont. 306; Smith v. Jordan, 13 Minn. 264, 97 Am. Dec. 232; Bliss Code Pleading (3d Ed.) section 417; Waggy v. Scott, 29 Ore. 386, 45 P. 774; Jackson v. Stearns, 84 P. 798; George v. Thomas, 16 Tex. 74, 67 Am. Dec. 612.

Uncertainty is not ground for demurrer, but for motion to make more definite. Snowden v. Wiles, 19 Ind. 10, 81 Am. Dec. 370; Williamson v. Yingling, 80 Ind. 371, also 93 Ind. 44; City of Connorsville v. Connorsville Hyd. Co., 86 Ind. 235; Hart v. Crawford, 41 Ind. 197; Lewis v. Edwards, 44 Ind. 333; Busta v. Wardall (S.D.) 52 N.W. 418; Morse v. Gilman, 16 Wis. 504; Clark v. Langworthy, 12 Wis. 441; Akerly v. Vilas, 25 Wis. 703 (Appx.); Sentinel Co. v. Thomson, 38 Wis. 489; Riemer v. Johnke, 37 Wis. 258; Pom. Rem. & Rem. Rights (2d Ed,) Art. 451, page 494; Emerson v. Nash, 102 N.W. 921, 70 L.R.A. 326; Milwaukee Trust Co. v. Van Valkenburgh, 112 N.W. 1083; Wilcox et al. v. Scanlon et al., 113 N.W. 948.

Every reasonable intendment and presumption must be made in favor of the pleading. 11 Cur. Law, 1258; Emerson v. Nash, supra; Manning v. School District No. 6, 102 N.W. 356; Morse v. Gilman, supra; Miller v. Bayer et al., 94 Wis. 123, 68 N.W. 869; Ean v. Chicago, M. & St. P. Ry. Co., 95 Wis. 69, 69 N.W. 997; Miles v. Mutual Reserve Fund L. Ass'n, 108 Wis. 421, 84 N.W. 159; Bassett v. Warner, 23 Wis. 673; Koepke v. Winterfield, 116 Wis. 44, 92 N.W. 437; Klieforth v. N.W. Iron Co., 74 N.W. 356; Milwaukee Trust Co. v. Van Valkenburgh, 112 N.W. 1083; Emerson v. Nash, supra; Donovan v. St. Anthony & Dak. El. Co., 75 N.W. 809.

If complaint presents facts sufficient for a recovery, though inartificially stated, it will stand as against a demurrer. 4 Am. & Eng. Enc. Pl. & Pr. 744; Spottswood v. Herrick, 22 Minn. 548; Casey v. American Bridge Co., 103 N.W. 623; Warren Bros. Co. v. King, 104 N.W. 816.

FISK, J. SPALDING, J. (dissenting).

OPINION

FISK, J.

This is an appeal from an order overruling a demurrer to the complaint, and the sole question presented is the correctness of such ruling.

The complaint, omitting formal parts, is as follows: "The plaintiff complains and alleges: (1) That on the 14th day of October, A. D. 1904, the above-named plaintiff and defendant made and entered into a written contract, an agreement in writing, wherein and whereby this plaintiff rented from the above-named defendant the northwest quarter of section twelve (12) in township one hundred thirty-five (135) north of range sixty-two (62) west of the Fifth principal meridian, and also the west half of section seven (7) in township one hundred thirty-five (135) north of range sixty-one (61) west, for the period of three (3) years. The same ending on or before April 1, A. D. 1908. This contract also included the rental of some stock, and the doing of various work. (2) That by reason of the rental of the said land, and the work performed by this defendant, and the use of this plaintiff's machinery, and the sale of cattle belonging to this plaintiff and the defendant jointly, by the defendant, and the storing of grain of defendant by plaintiff, and for the furnishing of twine, this defendant is indebted to this plaintiff in the sum of four hundred fifty-four and 50-100 ($ 454.50) dollars; no part of which has been paid save and except the sum of forty-one and 85-100 ($ 41.85) dollars by reason of flax and barley furnished and the labor performed by said defendant. That there is now due said plaintiff by reason of said account the sum of four hundred twelve and 65-100 ($ 412.65) dollars from this defendant. Wherefore, plaintiff prays judgment against the defendant for the sum of four hundred twelve and 65-100 ($ 412.65) dollars, and interest from and since October 31, A. D. 1907, together with his costs and disbursements herein."

The sole ground of the demurrer is that the complaint fails to state facts sufficient to constitute a cause of action.

While the complaint is very inartistically drawn, and is, no doubt, subject to attack by motion to make more definite and certain, we are of opinion that, under the liberal rule to be applied in testing its sufficiency as against such an attack, it should be upheld, although the author thereof cannot, with pride, point to the same as a model of scientific pleading. The rule is firmly established that a complaint, when attacked by demurrer upon the ground that it fails to state facts sufficient to constitute a cause of action, will be liberally construed in favor of such pleading, and the same will be upheld when it contains allegations of fact sufficient to reasonably and fairly apprise the defendant of the nature of the claim against him.

Prof. Pomeroy, in his valuable work on Code Remedies (section 549), gives a very clear and correct statement of the rule as follows: "The true doctrine to be gathered from all the cases is that if the substantial facts which constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, and defective, such insufficiency pertaining, however, to the form rather than to the substance, the proper mode of correction is not by demurrer nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment. From the citations in the footnote, it is clear that the courts have, with a considerable degree of unanimity, agreed upon this rule, and have in most instances applied it to defects and mistakes having the same general features, and have sometimes severely strained the doctrine of liberal construction in order to enforce it. Thus, if instead of alleging the issuable facts the pleader should state the evidence of such facts, or even a portion only thereof, unless the omission was so extensive that no cause of action at all was indicated, or if he should aver conclusions of law, in place of fact, the resulting insufficiency and imperfection would pertain to the form rather than to the substance, and the mode of correction would be by a motion, and not by a demurrer."

Dixon, C. J., in Morse v. Gilman, 16 Wis. 504, stated the rule as follows: "A complaint to be overthrown by demurrer, or by objection to evidence, must be wholly insufficient. If any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if a good cause of action can be gathered from it, it will stand, however inartificially these facts may be presented, or, however defective, uncertain, or redundant may be the mode of their treatment. Contrary to the common-law rule, every reasonable intendment and presumption is to be made in favor of the pleading; and it will not be set aside on demurrer unless it be so fatally defective that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever."

In the more recent case of South Milwaukee Co. v. Murphy, 112 Wis. 614, 88 N.W. 583, 58 L.R.A. 82, Marshall, J., said: "Under the liberal rules of pleading prescribed by the Code, facts which are inferable with reasonable certainty when stated according to their legal effect, if so alleged, do not render the pleading bad upon a challenge for insufficiency, though it may be open to a motion to make more definite and certain."

Prof. Sunderland, in his valuable article on Pleading in 31 Cyc. at page 280, says: "Under the Codes, the allegation of a legal conclusion, instead of the facts upon which it is based, does not usually make a pleading bad on general demurrer"--citing City of Santa Barbara v. Eldred, 108 Cal. 294, 41 P. 410; Lambe v. McCormick, 116 Iowa 169, 89 N.W. 241; Union, etc., Co. v. Stone, 54 Kan. 83, 37 P. 1012; Newport Light Co. v. City of Newport (Ky.) 19 S.W. 188; Harris v. Halverson, 23 Wash. 779, 63 P. 549; and other cases.

It is, of course, a well-settled general rule that facts, not legal conclusions, must be alleged in pleadings; but it is equally well settled that a pleading is not rendered insufficient because it contains legal conclusions in addition to the facts which properly belong in it. 31 Cyc. 49-51, and cases cited. For illustrations of the rule, see Id. 52 et seq.

Applying the foregoing rules to the complaint in the case at bar leads us to the conclusion that...