20 Minn. 370 | Minn. | 1874
By the Court.
The particular portion of the agreement, upon which the defendant relies in support 'of his demurrer to the complaint, is the following clause :
“ The *stone shall be measured by the government officer in charge of the U. S. “ Measurement.” work, and shall be the same as may be allowed said party of the second part.”
The language of this clause of the agreement, set forth in the complaint, whether considered by itself, or in connection with the rest of the instrument, and the marginal notations by the parties opposite the several clauses of the contract, will admit of but one reasonable construction, which is that the stone shall be measured by the officer therein designated, and the measurement shall be the same as may be allowed said party of the second part.
It is claimed by the plaintiff, that under sec. 92, chap. 66, Gen. Stat., it is not necessary to aver these facts, but that tbe general allegation in tbe complaint, “ that tbe plaintiff has duly performed all and singular tbe conditions to be performed ■ on bis part in pursuance of the contract,” is sufficient.
Tbe section of tbe statute relied on is as follows: “ In pleading tbe performance of conditions precedent in a contract, it shall not be necessary to state tbe facts showing such performance, but it may be stated generally that tbe party duly performed all tbe conditions on bis part; and if such
If it is necessary for the plaintiff to aver the measurement of the stone by the officer designated in the agreement, and the quantity delivered as determined by such measurement, or to allege facts which supersede the necessity of such aver-ments, then no sufficient allegation of delivery can be made without such averments. The allegation of delivery, contained in the complaint, is therefore bad, and, not being well pleaded, is not admitted by demurrer.
The order overruling the demurrer is reversed.