13 W. Va. 707 | W. Va. | 1878
delivered the opinion of the; Court:
The only questions, presented in this case, arise on the demurrer to the declaration, and to each count thereof.
Objections here are made only to the first and second counts. The third count was by the court, with the consent of the plaintiff, stricken out. No objection is raised to the fourth and fifth counts; and I see none to them ; and the demurrer to them and each of them was properly overruled.
It is here objected, that the first count is fatally defective, “ because the allegation of performance of the covenant on the part of the plaintiff is general.” It is insisted, that the declaration on its face should have pointed out specifically the time and manner, in which the plaintiff had performed his covenants.
In some of the States it has been held, that an allegation of general performance by the plaintiff is insufficient ; but in England it is held, that such allegation of performance is sufficient. 3 Rob. Prac. 578 and cases cited. Mr. Robinson p. 578, says, “it is not denied in New York, that, when a condition precedent lies by the covenant itself in a definite and certain form, so definite, that it need not be made more certain for the purpose of pleading, then it is enough to say generally, that the party has performed it, according to the intent and meaning of the agreement, if the conditions, as contained in that, were fully stated; and so of any number of acts by way of precedent condition. Wright v. Tuttle, 4 Day 313; 24 Wend. 162. But this it is said by Cowen, Judge, is rarely so.” In New York in a number of cases it has been held, that it is not enough to allege performance generally. In Virginia, as far as I have been able to find, there has been no adjudication of this precise question; and the question has never been passed upon by this Court.
While it is a general rule in pleading, that whatever facts are necessary to constitute the cause of action must be directly and distinctly stated, yet there has been much controversy as to the particularity, with which such facts
We think even at common law, where the declaration sets forth particularly, what the plaintiff was required to do by the covenant, and those things are matters of fact only, that an allegation in general form, that the plaintiff “ has performed all things by the covenant required of him, according to the tenor and effect thereof,” is sufficient; that in a case of this kind the objection is to the form, and not to the substance, of the declaration.
In Varley v. Manton, 9 Bing. 363, it was held, that pleading a general covenant of performance “ according to the provisions of the said agreement ” is sufficent, on general demurrer, although the agreement contains conditions precedent, specific averment of the performance of which would have been indispensible, on special demurrer.
Tindal, C. J., said: “We must take the words of the averment of performance, as they would strike any ordinary person. According to the provisions of said agreement, it overrides the whole of the preceding aver-ments ; and it would be a violent construction to confine it to the last member of the sentence. That brings the case within the rule, that where there is a general allegation of performance, if the other party wants a more specific averment, he must demur specially.”
Special demurrers were abolished by the Code of 1849, by the following provision: “On a demurrer, (unless it be a plea in abatement,) the court shall not regard any defect or imperfection in the declaration or pleadings, whether it has been heretofore deemed mispleading or inswffi-
Judge Roane, in Ambler et ux. v. Norton, 4 H. & M. 23 commenting on the provision in the Code of 1803, that declared, that on a general demurrer the court should not regard any defect or imperfection, unless something be omitted so essential, that judgment according to law and the very right of the case could not be given, said: “I am of opinion, that what is substance, or not, is to be determined on every action according to its nature.”
In applying the law to each particular case, the court must determine, whether the objection is to the mere form, or to the substance, of the declaration. If it is to the form merely, since the statute abolished special demurrers, the declaration would be held good; but if it is to the substance, and there is omitted something so essential to the action or defense, that judgment according to law and the very right of the case cannot be given, a general demurrer would be sustained.
The demurrer to the first count was properly overruled.
In the second count there is not even a general allegation of performance, but that he was at Bellaire on the day the contract was to be performed, and was ready and willing to convey, &c., but that he was prevented from so doing by failure of the defendant to be there on that dajo and that the defendant was on that day absent from the State of Ohio, and in the State of "West Virginia, where he resided, &c.
The third count being abandoned before the trial, and all the others being good, the demurrer was as to the whole declaration properly overruled.
There being no error in the record, the judgment of the court is affirmed with costs and damages.
JUDGMENT ÁEEIRMED.