Wilson v. Clarke

Decision Date01 January 1873
Citation20 Minn. 318
CourtMinnesota Supreme Court

Hamlin & Searle, for appellant.


Oscar Taylor, for respondent.


The agreement upon the part of Clark, the appellant, was not an unconditional one; it was to deliver to the plaintiff freight for transportation, as it should be received by and delivered to him by the United States authorities, under the agreement with Spurr, or other sources, and under the further qualifications stated in the agreement. Under the terms of the agreement upon which this action is brought, until freight was delivered to Clark, and the happening of the other contingencies mentioned in the agreement, there was no obligation upon him to deliver freight to the plaintiff for transportation, and, in the absence of the obligation to deliver, the neglect or refusal to deliver would not be a breach of the agreement.

The averment "that said defendant neglected and refused to furnish to him, the plaintiff, freight for transportation, according to the terms of said agreement," states a conclusion of law, and as no facts are stated in the complaint justifying such conclusion, it amounts to nothing. Schenck v. Naylor, 2 Duer, 676. The complaint should have averred in a proper manner the delivery of freight to Clark, and any other fact necessary to create the obligation upon Clark to deliver freight to the plaintiff, and then have negatived the performance of the agreement by Clark.

In assigning a breach of an agreement, "if the matter to be performed by the defendant depend on some other event, it seems proper not merely to assign the breach in the terms of the contract, but first to aver that such event took place; as, in a debt on a bond, conditioned that a collector of poor rates should render an account of moneys received, it should be averred that he did receive moneys, and then that he did not render an account of such moneys." 1 Chit. Pl. 333; Juliand v. Burgott, 11 Johns. 6.

The second point made by the appellant is that no facts showing any damage to the plaintiff are set forth in the complaint. Assuming the breach of the agreement to be well pleaded, under the allegation of damages in the...

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8 cases
  • Pacific-Wyoming Oil Co. v. Carter Oil Co.
    • United States
    • Wyoming Supreme Court
    • May 20, 1924
    ... ... oil and gas should be found in paying quantities, hence ... respondent is not obligated to pay the stipulated bonus, ... Morrison v. Wilson, 30 Cal. 344; where general words ... are used in connection with specific words the latter ... control, Page, Cont., Sec. 2026; the doctrine ... ...
  • Smith v. Altier
    • United States
    • Minnesota Supreme Court
    • October 16, 1931
    ...v. Davidson, 10 Minn. 314 (392); Burns v. Jordan, 43 Minn. 25, 44 N.W. 523; Sprague v. Wells, 47 Minn. 504, 50 N.W. 535. In Wilson v. Clarke, 20 Minn. 318 (367), a demurrer a complaint alleging nominal damages had been overruled below, and we reversed. But our later cases, without exception......
  • Larson v. Schmaus
    • United States
    • Minnesota Supreme Court
    • January 19, 1884
    ...precedent, (Gen. St. 1878, c. 66, § 109,) and it is doubtful whether such an allegation would be sufficient in this case. Wilson v. Clarke, 20 Minn. 318, Johnson v. Howard, Id. 322, (370;) Andreas v. Holcombe, 22 Minn. 339; Belt v. Stetson, 26 Minn. 411; Wangler v. Swift, 90 N.Y. 38. No cau......
  • Marquette Trust Co. v. Doyle
    • United States
    • Minnesota Supreme Court
    • March 8, 1929
    ... ... Valkenburg, for respondents ...           ... [224 N.W. 150] ...           [176 ... Minn. 531] WILSON, C.J ...          H. L ... Bollum, one of the defendants, appealed from an order ... overruling defendants' demurrer to the complaint, ... depended upon the acts of the trustees within the rule of ... Johnson v. Howard, 20 Minn. 322 (370); Wilson v ... Clarke, 20 Minn. 318 (367); Bergmeier v ... Eisenmenger, 59 Minn. 175, 60 N.W. 1097. But we do not ... reach that point. Even though the complaint says ... ...
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