Ketchum v. Van Dusen, 11 A.D. 332

Ketchum v. Van Dusen

11 A.D. 332 | N.Y. App. Div. | 1896

Herrick, J.:

When, at the commencement of the trial of an action, and before any evidence is taken, a motion is made to dismiss the complaint upon the ground that it does not state facts sufficient to constitute a cause of action, the question presented is one of pleading. (Herbert v. Duryea, 87 Hun, 288.)

And such question is to be decided upon the same principles that govern the decision of a demurrer to a complaint for insufficiency. (Sanders v. Soutter, 126 N. Y. 193; Kain v. Larkin, 141 id. 144.)

*335A demurrer to a complaint for insufficiency can only "be sustained when it appears that, admitting all the facts alleged, it presents no cause of action whatever. It is not sufficient that the facts are imperfectly or informally averred, or that the pleading lacks definiteness or precision, or that the material facts are Only argumentatively averred. The complaint on demurrer is deemed to allege what can be implied from the allegations therein by a reasonable and fair intendment, and facts impliedly averred are traversable in the same manner as though directly averred. (Sanders v. Soutter, 126 N. Y. 193; Zebley v. F. L. & T. Co., 139 id. 461: Kain v. Larkin, 141 id. 144.)

Under our Code pleadings should be liberally construed with a view to substantial justice; and where the plaintiff’s complaint may reasonably import the averment of a good cause of action, it is not to be held bad on demurrer, because its language is susceptible of being construed as excluding any sucb cause. Where it is susceptible of an interpretation which will constitute a cause of action, that interpretation will be given it rather than one which excludes a cause of action. (Olcott v. Carroll, 39 N Y 436.)

The statement of facts in the complaint is perhaps susceptible of two interpretations—one that the alleged agreement between-the plaintiff and defendant was an agreement for a lease of the defendant’s farm ; the other that it was an agreement for the rendition of the services of the plaintiff and his wife, in return or payment for which the plaintiff was to receive a written lease of the farm for a year, containing an agreement for its renewal, upon certain conditions, during the lifetime of the defendant and his wife, with a grant of defendant’s property to the plaintiff upon the defendant’s death. The plaintiff was also to have the produce of tire farm during the time of the rendition of the services of himself and wife. This latter interpretation is one that I think is warranted by the facts stated.

Then there is the statement that the plaintiff and. his wife, in pursuance of such agreement, rendered and performed services and furnished material to and for the defendant that the defendant has failed and refused to perform his part of the agreement, and has not paid for the services rendered or material furnished.

In other words, the defendant has received, under a contract *336which he refuses to carry out on his part, valuable services, for which he -refuses to pay.

I think these facts show a cause of action in favor of the plaintiff and against the defendant for the damage sustained by the plaintiff by the breach of the contract, or for the value of the services rendered by him pursuant to it. (Howard v. Daly, 61 N. Y. 362.)

It is contended that the complaint is insufficient “ because it does not allege that any damage accrued to the plaintiff by reason of any ' breach of contract.”

It is not necessary to allege in terms that he has suffered damage; it is sufficient if facts are alleged from which damage can be inferred.

Where the complaint alleges a cause of action from which damages may, and presumptively do flow, the addition of a demand of judgment for a sum of money, as the consequence of such cause of action, is all that is required to sustain the pleading. (Kenney v. N. Y. C. & H. R. R. R. Co., 49 Hun, 535.)

While the above-cited case was not one arising out of a breach of contract, the principle enunciated is one that applies to all actions for damages, no matter from what cause arising. The facts stated by the plaintiff show that he has been damaged by the breach of the contract. He shows the performance of labor and services and the furnishing of materials, for which he has not been paid,either by giving him the written lease, as agreed, nor in any other way.

The statement of these facts in the manner set forth in the complaint is good, either as an averment of facts from which damage will be inferred, or as allegations of fact by which to measure his recovery upon a qua/ntum meruit.

It is not material that the plaintiff does “not demand the precise damages to which he is entitled, or makes a mistake in the true rule of damages in his complaint. The court upon the facts alleged in the complaint may adjust the recovery upon the proper basis. (Colrick v. Swinburne, 105 N. Y. 503.)

If the facts stated in the complaint show that the plaintiff is entitled to any relief, either legal or equitable, it is not demurrable on the ground that the party has not demanded the precise relief to which he appears to be entitled. (Wetmore v. Porter, 92 N. Y. 76 ; Mitchell v. Thorne, 134 id. 536.)

*337The complaint shows an agreement between plaintiff and defendant ; that pursuant to that agreement the defendant has received from the plaintiff valuable services and materials; that he refuses to fulfill his part of the agreement and declines to pay for the services rendered and materials furnished, and the value of such services and materials is set forth and a judgment for the amount thereof demanded. I think that is sufficient.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment reversed and a new trial granted, costs to abide the event.