18 F. Cas. 628 | U.S. Circuit Court for the District of Oregon | 1872
These actions were commenced October 14, 1872, and the motions to strike out were argued and submitted together on November 9. The first named one is brought to recover the balance
In each case the contract sued upon, instead of being pleaded in the complaint according to its tenor or legal effect, is annexed thereto as an exhibit. In each complaint the allegation in regard to the failure ito furnish transportation is numbered six, and commences: "And for a further.breach of defendant’s said contract plaintiff alleges that defendant failed,” etc. No facts 'are stated except the’ failure aforesaid to show that the plaintiffs sustained damage by reason thereof.
The motions to strike out are aimed at these allegations as well as the ones making the contracts exhibits, and the contracts themselves. As to the allegations concerning the contracts, the motions must be allowed. In pleadings in actions at law, there are no such things as exhibits. If'a party desires to complain upon or plead a writing he must state ■it in his complaint or plea according to its tenor or legal effect. Such has always been the ruling and practice in this court.
As to the allegations numbered Bix, they should have been pleaded not as “a further breach” of the contract, but as a separate and further cause of action. The practice of assigning more than one breach in the same count or statement of a cause of action, prior to the Code, was permitted only in covenant upon a deed and by statute in debt upon bond with a condition, or to secure covenants. IVhen an ordinary contract contains various substantive and independent provisions — as in this case, to pay for labor furnished, and to furnish transportation to laborers — if there’ is a breach or failure to perform more than one of the stipulations, there are distinct causes of action, requiring different proofs, and which may admit of different defenses, and therefore should be stated separately. This cause of action not being pleaded separately is liable to be stricken out on motion. Code, Or. 163. But these allegations are not liable to be stricken out upon the ground assigned in the motion as being “immaterial and irrelevant.” True, no special damage could be proven or recovered under them, because no facts showing such damage are stated in them, as that the plaintiffs by reason of such failure were compelled and did furnish such transportation and pay for the same so much. Still the allegations contain an averment of a breach of the respective contracts, for which, if found true, the plaintiffs would he entitled to recover nominal damages. So much of the motions is denied.
