3 Mass. App. Ct. 148 | Mass. App. Ct. | 1975
In this action of contract, the defendant’s demurrer was sustained generally; the plaintiff has appealed. The declaration consisted of twenty-seven counts. The demurrer, which was addressed “separately to each of the separate counts in the declaration distributively and not to all the counts collectively...” assigned fifteen grounds. It would serve no useful purpose to recite the several counts and grounds in detail; it is sufficient to say that the facts alleged in the declaration (which are assumed
As the demurrer applied to each count of the declaration separately, we may sustain it as to one count and overrule it as to another. Flower v. Suburban Land Co. Inc. 332 Mass. 30, 31-32 (1954). We proceed to examine the grounds assigned.
1. The first two grounds of the demurrer allege that the plaintiff failed to attach a copy of the written contract as “required” by G. L. c. 231, § 7, Eleventh, and that the plaintiff otherwise failed “to conform to the requirements of G. L. c. 231, § 7 cl. II.”
2. Five grounds of the demurrer (Nos. 6-10, inclusive) are addressed to the plaintiff’s failure to allege compliance with certain terms and conditions of the contract. In view of our decision that the plaintiff was not required to set out the contract in its declaration, or attach it thereto, those grounds cannot be considered by the court. In this respect we have a speaking demurrer. Massachusetts Mut. Life Ins. Co. v. Shattuck, 328 Mass. 561, 562 (1952). See Lo-ranger Constr. Co. v. C. Franklin Corp. 355 Mass. 727, 729 (1969).
3. The eleventh ground of the demurrer asserts that the plaintiff failed to allege compliance with St. 1890, c. 418, § 6 (as amended through St. 1955, c. 60), an act requiring the approval of the mayor of the city of Boston on contracts such as the original contract involved in the case at bar. The defendant has cited no authority for the proposition that such an allegation is essential to a declaration such as the plaintiff’s, and we hold that it is not. “The question [on demurrer] is not as to the sufficiency of evidence to prove due execution of the contract, but is as to the sufficiency of the allegations thereof in the declaration.” Dad-dario v. Pittsfield, 301 Mass. 552, 556 (1938). Therefore, the demurrer cannot be sustained on that ground.
4. Three grounds of the demurrer (Nos. 3-5, inclusive) challenge the general legal sufficiency of each of the counts, alleging (a) that the matters “are insufficient in law to enable plaintiff to maintain its action;” (b) failure to state substantive facts concisely and with substantial certainty; and (c) “failure to state a cause of action.” We have carefully examined each of the twenty-seven counts and are of the opinion that the plaintiff has sufficiently stated a cause of action and has alleged substantive facts concisely and with substantial certainty in five of the twenty-seven counts (Nos. 1, 2, 10, 22, and 23). We note that even in those five counts which, in our opinion, are good against these three grounds of demurrer, the cause of action in some
5. In view of our decision that count nineteen fails to state a cause of action, it is not necessary to consider the fifteenth ground of the demurrer, which is addressed solely to that count.
6. The three remaining grounds of the demurrer bear no application to the allegations contained in the five surviving counts, as these counts are not based on implied contract or quantum meruit. The plaintiff was not required to allege specifically in each count that payment was demanded and refused. See Perkins v. Davis, 109 Mass. 239, 241 (1872).
7. The order sustaining the demurrer generally is reversed. A new order is to be entered sustaining the demurrer as to counts 3 through 9,11 through 21, and 24 through 27, but overruling the demurrer as to counts 1, 2,10, 22 and 23.
So ordered.
General Laws c. 231, § 7, Eleventh (as in effect prior to St. 1973, c. 1114, § 157), provided in pertinent part: “Written instruments shall be declared on by setting out a copy or such part as is relied on, or the legal effect thereof, with proper averments to describe the cause of action. If the whole contract is not set out, a copy or the original, as the court may direct, shall be filed upon motion of the defendant....”