283 F. 658 | S.D. Fla. | 1922
To the six common counts in the declaration the defendant interposes the plea of general issue of not guilty. The seventh count undertakes to declare more fully what the cause of action really is, and this is done in some 1,200 or more words employed in the count, to say nothing of the exhibits attached. Against this count the demurrer and the motion for compulsory amendment are directed. While various grounds are assigned for the
The objection that this count is too vague or uncertain is not well founded, for I think in plain and unambiguous language the plaintiff has stated an actionable cause. The plaintiff’s grievance against the defendant is stated in understandable language. I think an intelligent layman would know what the suit is about, and the courts and lawyers must not be more dense than laymen.
As to multifariousness of subject-matter, it must be said that this charge cannot be supported. The allegations are to the effect that the two patents are covered by the one agreement between the plaintiff and the defendant. This frees the declaration of the charge that two separate subjects-matter are alleged in the one suit, for the suit is founded on the one agreement declared in the complaint. It is manifest that the plaintiff claims under one agreement covering both patents. The suit is founded on the one agreement, not on one or the other of the patents. Both patents together constitute one inseparable feature, covered by the one agreement.
The plaintiff has declared on an agreement and its breach. He does not, directly or by any justifiable inference, say that it was in writing. However that may be, it is but a matter of evidence and no rule of pleading requires the plaintiff to plead his evidence.. If the statute of frauds is attempted to be invoked by the demurrer, and this is not clear, it seems to me that such defense should be interposed by special plea, or by objection to evidence on the trial, or by peremptory instruction of the court to the jury.
The agreement here declared on depending on a contingency, which contingency might happen in one year, does not come within the statute of frauds. Warner v. Texas & P. R. Co., 164 U. S. 418, 17 Sup. Ct. 147, 41 L. Ed. 495; Myers v. Saltry, 163 Ky. 481, 173 S. W. 1138, Ann. Cas. 1916E, 1134; Deane v. Hodge, 35 Minn. 146, 27 N. W. 917, 59 Am. Rep. 321; Hecker v. Fowler, 2 Wall. (69 U. S.) 123, 17 L. Ed. 759; 13 Corp. Juris, p. 714; Wilkes v. Stacy, 113 Ark. 556, 169 S. W. 796.
It seems that in some Code states the statute of limitations of the statute of frauds can be urged to demurrer; but I do not think that the wise liberalized system of pleadings in Florida has gone that far.
The conclusion is that the demurrer and motion for compulsory amendment must be overruled.'
