44 A. 747 | Conn. | 1899
At common law the declaration must allege not only facts sufficient to show a right of action in the plaintiff, but also facts sufficient to show a right to recover in the particular form of action selected; and must contain *451
all allegations deemed necessary to a complete legal statement of a cause of action enforceable through that form. Many of the rules which had become settled under this system of pleading were rendered obsolete by the abolition of all forms of action. Now there is but one form of action (with certain statutory exceptions) to enforce any right; and it is only essential for a complaint or statement of claim to give "a plain and concise statement of the material facts" requisite to support any right in the plaintiff to have the relief demanded. Practice Act, §§ 1, 9; Craft RefrigeratingMachine Co. v. Quinnipiac Brewing Co.,
In the case at bar the allegations are to be found both in the complaint and in the bill of particulars which is a part of or amendment to the complaint. Vila v. Weston,
This states a cause of action; not the action upon an express (fictitious) promise for which the common count was used, for such an action ceased to exist when the common count disappeared; but an action to enforce the legal duty to pay, arising from the facts of the rendition and acceptance of the services. New York Breweries Corp. v. Baker,
It is true, under the modern system as under the ancient, that relief can be granted only in pursuance of facts alleged and proved. But the rules as to material allegations which grew out of the necessity of alleging every cause of action in conformity with the requisites of some technical form of action, have become inoperative; and so the tests of what is material and what is a defect of form rather than of substance, are now somewhat different. The defects pointed out by the defendant are not substantial. It is not essential to allege that the debt due remained unpaid at the commencement of the action. Such allegation is usually made and is to be found in the forms that by rule of court may safely be used, but whose use is not prescribed. Payment is an affirmative defense, and such defense the plaintiff is not required to anticipate. Rules under the Practice Act, Rule IV, § 6; Salisbury
v. Stinson, 10 Hun, 242; Keteltas v. Myers,
The defendant is right in saying that the failure to allege the breach of an express contract on which suit is brought, may be a defect of substance and fatal after verdict. But this action is not brought on the breach of an express contract. The plaintiff's right is not derived from any express promise; it is derived from a legal duty arising from the facts stated. It is needless to allege any duty which the law implies from the facts pleaded; Rules under the Practice Act, Rule III, § 5; and the plaintiff's allegations necessarily involve the claim that that duty has not been performed. A court cannot refuse to comprehend the meaning of facts alleged. Lord
v. Russell,
It is the purpose of the Practice Act to secure the utmost simplicity and freedom from mere technical form consistent with the accuracy indispensable to judicial proceedings. But *453 all facts essential to the relief asked must be stated; and they should be stated in an orderly and clear manner, with reasonable certainty, and with fullness sufficient to fairly apprise the opposite party of the case he has to meet. The court will enforce such pleading, if opportunity is given. But if parties will insist on going to trial on issues framed in a slovenly manner, they must abide the verdict; judgment will not be arrested for faults in statement when facts sufficient to support the judgment have been substantially put in issue and found.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.