54 Neb. 123 | Neb. | 1898
John J. Conoughy, in the district court of Adams county, recovered a judgment against the Penn Mutual Life Insurance Company and one N. J. Schmidt. The insurance company has filed here a petition in error for a review of that judgment.
1. Conoughy in his petition for a first cause of action alleged that the insurance company and Schmidt on the 9th of June, 1893, made and delivered to one McGrath their check in writing payable to his order as follows:
“Omaha, Nebraska, June 9, 1893.
“American National Bank: Pay to the order of E. J. McGrath seventy ($70) dollars.
“N. J. Schmidt, Gen’l Agt”
That McGrath afterwards indorsed and delivered the check for value to Conoughy; that he duly presented it for payment, and that it was dishonored; that no part of the check had been paid, and there was due to him, Conoughy, from the insurance company and Schmidt on said check the sum of $70, for which it called, and $2.50 protest fees. This count of the petition does not state a
2. For a second cause of action Conoughy alleged “that on the 11th day of June, 1893, this plaintiff lent, expended, paid out, and advanced at the instance and request of the defendants, and for the use and benefit of the said defendants, the sum of $72.50, which said sum and amount they, the said defendants, then and there agreed to pay; that the said defendants have taken, accepted, and received the said sum of money, and have kept, retained, and appropriated the same to their own use and benefit, and though often requested -to pay, have failed and refused to do so.” We do not approve of this method of pleading. The Code of Civil Procedure (sec. 92) requires a pleader to state the facts which constitute his cause of action or defense in ordinary and concise language, and this practice of adding a “common count” in a pleading is one not contemplated by the Code. However, the aver
Reversed and remanded.