3 Wash. 200 | Wash. | 1891
The opinion of the court was delivered by
This is an action brought by plaintiff against defendant on common counts for money received. The plaintiff alleges in his complaint that defendant became indebted to him between the 21st day of October, 1889, and the 12th day of June, 1890, in the sum of $767.65, had and received from said plaintiff by the said defendant for the use of said plaintiff. The first allegation is as follows: “(1) That on the 21st day of October, 1889, said defendant became indebted to the said plaintiff in the sum of $250, as for money had and received from
It is contended by the appellant that there was a fatal variance between the allegations in plaintiff’s complaint and the proof offered upon the trial, and that the complaint and reply are inconsistent with each other. It appears from the reply, and is conceded by the respondent, that the action was based upon the alleged breach of contract. Under the fictions of the common law, and the license given to plead presumptions, and what the pleader conceived to be the legal effect, and operation of the facts, instead of the facts themselves, this form of contract might
“Sec. 73. All the forms of pleadings heretofore existing in civil actions, inconsistent with the provisions of this code, are abolished, and hereafter the forms of pleading, and the rule by which the sufficiency of the pleadings is to be determined, shall be as herein prescribed.”
Let us now see what form of pleading is prescribed. Section 76 prescribes that the complaint shall contain a plain and concise statement of facts constituting the cause of action. It is a “plain and concise statement of facts” which the law requires, and not their legal effect, or the legal conclusions inferred from them,with the commendable object in view, no doubt, of informing the defendant of the exact nature of the claim against him, and of the facts relied upon to establish it, so that he can answer intelligently and directly, without leaving him mystified and uncertain as to whether he has drawn the right deduction from legal presumptions, and so that the true matters in issue can be brought directly to the attention of the court and of the jury. Mr. Pomeroy, in his masterly work on Remedies and Remedial Rights, § 519, in analyzing the phrase “ cause of action,” as used by the codes, describes it as consisting of two distinct elements: (1) The plaintiff’s primary right and defendant’s corresponding primary duty; (2) the delict or wrongful act or omission of defendant. These two separate and distinct elements, in combination, constitute the cause of action. The primary right and duty by themselves are not the cause of action, because when existing by themselves, unbroken by the defendant’s wrongs, they do not give rise to any action. For this reason that definition is clearly erroneous which pronounced the “debt” in an ac
While it is true that courts have been slow, and justly so, to change established rules of pleading which have received the sanction of ages, and under which rights have been adjudicated from time immemorial, it is equally true that courts are as much bound to observe and enforce the plain mandatory provisions of the statute in regard to pleadings ás they are its mandatory provisions on any other subject; and, while the courts in many of the states still adhere to and sustain the old practice, it seems to us, as expressed by Mr. Pomeroy, that this is substantially the repealing of an express statutory provision by judicial construction, and we cannot refrain from quoting the following apt language of this eminent writer in his review of the opinion in Booth v. Bank, 1 N. Y. Sup. Ct. 45:
“ To sum up the foregoing criticism, the whole course of reasoning pursued by the learned judge assumes that the most technical, arbitrary and fictitious distinctions between the ancient forms of action are still subsisting. It does notmerely ignore the legislation which has abrogated those distinctions, but it expressly denies the ability of the legislature to accomplish such a result. This is not interpreting, it is repealing a statute.”
Some of the states, however, notably Minnesota and Oregon, have sustained the code system of pleading, both in letter and spirit. See Foerster v. Kirkpatrick, 2 Minn. 210; Bowen v. Emmerson, 3 Or. 452. In this case it was held that, in an action for money due on a contract, facts should be stated showing that the contract existed between the parties, and that it had been broken. Following, then, the rule prescribed by the code, we find that § 86 provides
“ It is one of the merits of the code that general averments and general issues, which convey no information to the opposite party, and were frequently construed in a sense not only different from, but distinctly opposite to, that which their terms impute, are now abolished. The plaintiff must now state in his complaint all the facts which constitute the cause of action, and we are clearly of the opinion that every fact is to be deemed constitutive, in the sense of the code, upon which the right of action depends; every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred; and every averment must be understood as meaning what it says; consequently is only to be sustained upon evidence which corresponds with its meaning.”
This we believe fairly states the law and proper practice
The judgment is reversed, and the cause remanded with instructions to proceed in accordance with this opinion.
Anders, C. .J., and Stiles, Scott and Hoyt, JJ., concur.