39 S.C. 436 | S.C. | 1893
The opinion of the court was delivered by
As one of the questions made by this appeal arises upon a demurrer to the complaint, it will be proper to state briefly the substantial allegations contained in the complaint, though perhaps it will be more satisfactory to the profession that the complaint should be set out in luiec verba in the report of the case. The first paragraph contains simply an allegation of the partnership of the plaintiffs. 2d. That plaintiffs entered into a contract in writing with defendant to construct and grade a portion of a certain railroad. 3d. That plaintiffs did the work contracted for to the amount and value of the sum stated, a particular statement of which is set forth in a schedule annexed. 4th. That the said sum of money became payable on the 1st day of July, 1890, and that no part 'thereof has been paid except a specific sum stated, leaving a balance due, the amount of which is stated, which is still unpaid, and that plaintiffs are entitled to said balance, with interest from said date. 5th. That plaintiffs have in all respects complied with the stipulations contained in said contract, and that the work done by them has been accepted by said railroad company, which has laid their track and are running their trains over the same. The 6th paragraph is as follows: “The defendant was a sub-contractor of and under the Massachusetts and Southern Construction Company, a body corporate, and contracted and agreed with the plaintiffs to receive and collect from said corporation and pay to the plaintiffs punctually on the twentieth of every mouth in cash, the amounts due the plaintiffs by the defendant, as ascertained by the engineer’s estimates.” And the 7th paragraph is in the following language: “That the defendant has received and collected from the Massachusetts and Southern Construction Company, in bonds, coupons and cash, more than enough to
After setting out the itemized statement above referred to as part of the complaint, showing the amount of the work done and the prices-charged therefor, which, after deducting payments, leaves the balance above referred to as damages, the “Case” contains the following statement: “Immediately after the reading of the complaint, and without reading his answer, the defendant interposed an oral demurrer and motion in words as follows: For that the complaint states two causes of action jumbled together, in that it states a cause of action on an alleged contract, and a cause of action sounding in damages; and defendant demurs to so much of the complaint as attempts to state a cause of action sounding in damages after first stating an action on a contract; and defendant moves that all of section (paragraph) seven of the complaint, after the words, ‘refuses to do so,’ be stricken out, for that the complaint does not state facts sufficient to set forth two separate causes of action, to wit: an action on contract and an action for damages.”
The Circuit Judge overruled the demurrer and denied the motion. Whereupon the defendant appeals, alleging error in overruling the demurrer, and refusing the motion upon the grounds contained in the foregoing statement, extracted from the “Case.”
The judgment of this court is, that the judgment of the Circuit Court be affirmed.