White et al. v. Romans
| Decision Date | 09 April 1887 |
| Parties | White et al. v. Romans |
| Court | West Virginia Supreme Court |
It is an elementary rule in pleading, that the declaration must allege all the circumstances necessary for the support of the action, and contain a full, regular and methodical statement of the injury, which the plaintiff has sustained, with such precision, certainty and clearness, that the defendant may be distinctly informed of the specific grounds of the action, and thus be enabled to answer by a direct and unequivocal plea with evidence to support it. (p. 574.)
A case in which the declaration fails to conform in its averments to the essential requirements of this rule, and is, therefore, held fatally defective and insufficient on general demurrer, (p. 575.)
H. K. Shumate, for plaintiff in error. No appearance for defendants in error. Snyder, JudGe:
Action of trespass on the case brought in June, 1882, in the Circuit Court of Logan county by Thomas White and Chapman Williamson, plaintiffs, against Alexander Romans, defendant, to recover damages for alleged breaches of a "written contract. The declaration contains three counts.
The substance of the first count is, that the plaintiffs and defendant, on August 26th, 1881, entered into a contract in writing by which the defendant sold to the plaintiffs all the Isom Romans land on Elk, Millstone and Pigeon creeks in said county and six yoke of cattle with their sawdog rigging, at the price of $3,200.00 to be paid in timber cut and hauled from said land and delivered to the defendant, well rafted and oared, at the mouth of Pigeon creek, on or before June 1st, 1882, at ten cents per cubit foot; that by said contract the defendant was to furnish to plaintiffs all the necessary means to carry on and complete said job; that long before said first day of June, 1882, to wit, on and after March 1st, 1882, the defendant, although often requested so to do. failed to furnish the necessary means, to wit. money, hands, provisions, feed, &c, to enable the plaintiffs to perform said contract; that the plaintiffs did perform said contract on their part until the defendant refused to furnish hands, provisions, feed, &c, to complete the same, and the want of water to run timber to the place of delivery, and that the plaintiffs did, before June 1st, 1882, deliver to the defendant at the mouth of Pigeon creek, under said contract, timber of the value of $1,500.00. Yet the defendant, well knowing* the premises, has not kept and performed said contract but has broken the same, and to keep the same has wholly refused and neglected to the damages of the plaintiffs $2,-500.00.
The second count is in effect the same as the first, except that it further avers that the defendant delivered to the plaintiffs the possession of said land and cattle, he retaining the legal title thereto until the contract should be performed by the plaintiffs; that under the contract the plaintiffs delivered in Pigeon creek and its tributaries a large amount of timber, to wit, of the value of" $3,500.00, and that three months before June 1st, 1882, the defendant forcibly took from the plaintiffs the said six yoke of cattle and their rigging, whereby the plaintiffs were prevented from fulfilling said contract on their part.
The third count purports to set out the contract in hcec verba as follows: "August 26th, 1881.-Article of agreement made between A. L, Romans of the first part and ThomasWhite and Chap. Williamson of the second part: A. L, Romans sells to the parties of the second part the Isom Romans-tract of land and six yoke of cattle and the peeled, timber on it for the sum of $3,200.00 In timber, the same timber that is peeled on said land, at the mouth of Pigeon creek, well rafted and oared, at ten cents per cubic foot, for which they bind themselves to cut and haul the aforesaid timber this year and deliver it against June 1st, 1882, if possible; and the first party binds himself to furnish the necessary means to run said job in, for which the second party binds the land and timber, all of it, and the cattle and rigging and possession of land and property till paid for, for which the second party is to use all energy to put said timber out this season, providing there is water." This count then avers in general terms, that the plaintiffs fully complied with and performed their part the stipulations of said contract; but that the defendant, although often requested, has not kept said contract but has broken the same to the damage of the plaintiffs $2,500.00.
The defendant demurred generally to the declaration and the court overruled the demurrer. The case was tried by jury on the issue of not guilty and there was a verdict and judgment against the defendant for $800.00. The defendant moved for a new trial which the court refused. He then excepted and at his instance all the evidence was certified and made part of the record.
Our first enquiry is, did the court err in overruling the demurrer to the declaration? The contract set out in the third count is very badly drawn and not very clear and definite in its purposes. It seems, however, to be intended as a sale of the land and cattle to the plaintiff in consideration of $3,200, to be paid in timber at ten cents per cubic foot, and delivered to the defendant at the mouth of Pigeon creek by June 1, 1882, if possible; the defendant to furnish the necessary means to enable the plaintiffs to perform the contract for which he is to retain the title to the land and cattle as security. What means the defendant wTas to furnish is not specified; nor is it clear to what extent the land and...
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