Morse v. Gilman

16 Wis. 504 | Wis. | 1863

By the Court,

Dixon, C. J.

Whether the agreement to pay eighteen instead of sixteen cents per cubic yard for the grading, be void for want of consideration, is not a question which goes to the entire sufficiency of the complaint. Conceding that it is, the complaint still shows a cause of action for the sixteen cents named in the written contract, upon which the plaintiff proceeds, as well as upon the verbal agreement to pay more. That the contract between Merrick and the city is not set out, as it undoubtedly should have been, is not an objection which can be taken in this way. The remedy of the defendant for this defect was by motion to require the complaint to be made definite and certain by amendment. R. S., ch. 125, § 22; See 1 Whit., Pr., 3d Ed., pp. 59, 60, and 2d id., pp., 665 and 657, where the authorities are extensively collected. It is said to be a general rule, that a complainj^o be overthrown by a demurrerjor objection to evid^ncej|must be wholly insufficient. If in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if a good cause of action can be gathered from it, it will stand, however inartificially these facts may be presented, or however defective, uncertain or redundant may be the mode of their statement. Contrary to the common law rule, every reasonable intendment and presumption is to be made in favor of the pleading, and it will not be set aside on demurrer unless it be so fatally defective, that taking all the facts to be admitted, the court can say they furnish no cause of action whatever. /The case is as if the plaintiff had averred generally, and without stating any particulars of the amount, or the time and manner in which the work was to be performed; that Dewey had entered into an written contract with the defendant, through his agent Merwick, to do the grading at so much per cubic yard ; that he had completed it according to the contract; and that.there was due the plaintiff on account thereof, by assignment from Dewey, so many dollars, for which he demanded judgment. Such a complaint would throw very little light on the specific provisions of the contract, and must be deemed too vague and uncertain for the purposes of a full and fair defense; but if the defendant* should by answer or demurrer, admit the facts stated to be true, it seems clear to us |hat they would anthorize a judgment. The complaint before us is fully as explicit, and, though it might have been reached by motion, it is good on depiurrer. No well founded distinction can be made between this, and the case of Allen vs. Patterson, 3 Seld., 476, where an averment that the defendant was indebted for goods sold and delivered was upheld on demurrer, or Cudlipp vs. Whipple, 4 Duer, 610, where a complaint that the defendant was indebted &c., being a balance of account due for money lent, paid, laid out and expended, was sustained, even upon motion to compel the plaintiff to make the same more definite and certain, or Graham vs. Cumman, 5 Duer, 657, in which a demurrer to a complaint alleging the indebtedness to be upon a balance of an account stated, w;as overruled. And the objection is in substance the very same as that urged in Broderick vs. Paillon, 2 E. D. Smith, 554, where the court, upon motion, ordered an amendment of the complaint. The action was to foreclose the alleged lien of a sub-contractor upon a house and ]ot owned by the defendant. The complaint alleged that the plaintiff furnished materials towards the construction of the building, pursuant to a contract made with him by a contractor in the enployment of the owner. There was, however, no averment showing whether or not the materials conformed to the requirements of the original contract between the owner and his contractor. The objection that the complaint does not show a performance of the contract, is unfounded in fact. It is alleged that Dewey completed the grading, which is all that is required under the statute.

Judgment reversed, and a new trial ordered.