77 P. 20 | Idaho | 1904
This is an action to recover for carrying United States mail from Mt. Idaho to Florence, Idaho. It is alleged in the complaint that in December, 1898, one Hols-claw entered into a contract with the United States, wherein he ¡contracted to carry the United States mail between Grangeville, Idaho, and Florence, Idaho, as a subcontractor, under what was Imown as the Underwood mail contract, and that the respondent 'Oliver was one of said Holsclaw’s sureties for the faithful performance of the duties imposed by said contract; that in August, 1899, said Holsclaw failed to comply with the conditions of said contract and ceased to carry said mail on said route, and that the defendant Oliver, as one of the sureties aforesaid, assumed the duties and conditions of said contract and carried said mail from about August 1, 1899, to December 19, 1899; that on or about the last-named date respondent Oliver, as surety, as aforesaid, employed one A. G. Smith to carry said mail and agreed to pay said Smith and his employees for such services the sum of $2,200 per year, payable quarterly, and to pay the same out of the money received by him from the United States in payment for such services and expenses; that immediately after making said contract and agreement said Smith and plaintiff, relying on said promise, entered upon the duties of said contract and began carrying said mail, and did carry, the same for ninety-two days, and that during said time, and at the request of Smith, this appellant paid for and on account of
To this complaint the respondent interposed a demurrer on numerous grounds, which demurrer was overruled by the court, and as no appeal was taken from the order overruling the demurrer, the action of the court therein cannot be reviewed on this appeal. It appears from the record that said complaint was the second amended complaint filed in said action. After the overruling of said demurrer the defendant answered, denying generally each and every allegation contained in the complaint and set up four separate defenses. As a second defense the appellant alleges that he received from said Holselaw on or about July 10, 1900, on account of the mail contract mentioned in plaintiff’s complaint, the sum of $427.50; that he received no other or greater sum; that on or about December 19, 1899, said Smith contracted with the defendant to furnish him with
For a third defense defendant sets up the claim of one Schwaibach of $250 against said Smith, and alleges the assignment thereof to the defendant, and for a fourth defense the defendant sets up an assigned claim of one Pfeufer against said Smith of $32. For a fifth and separate defense he sets up an assigned claim from one McKee against said Smith for the sum of $35.60. To the third, fourth and fifth separate defenses plaintiff demurred on the grounds that said defenses did not constitute a defense or counterclaim to the plaintiff’s cause of action. Said demurrer was overruled. On the issues thus made a jury was impaneled to try said cause, and before plaintiff had introduced his evidence and rested, on a motion of counsel for respondent a judgment of nonsuit and dismissal was entered. The appeal is from the judgment.
Several errors are assigned on which a reversal of the judgment is asked. The first we will consider is that the court erred in overruling the demurrer to the third, fourth and fifth separate defenses. Those defenses are based on assignments of claims against said Smith, who is not a party to this action, and under the allegations of the complaint cannot be set up as'
Considerable has been said in the argument of this case as to what kind of an action this is. It is contended that in plaintiff’s opening statement to the jury counsel took the position that the action was for money had and received, and that the appellant in his complaint and in his brief has hopelessly jumbled his causes of action and his ideas of the relief he is entitled to and of the grounds and means of securing a relief. While we must admit that the complaint is not one that should be talcen as a model, yet we think under the provisions of section 4168, subdivision 2, the complaint is sufficient. Said subdivision provides thpt the complaint must contain a statement of the facts constituting the cause of action in ordinary and concise language. Section 4020, Revised Statutes, provides that there is but one form of civil actions for the enforcement or protection of private rights and the redress or prevention of private wrongs. Under the provisions of our code, the technicalities of pleading have been dispensed with and the plaintiff need only state his cause of action in ordinary and concise language, whether it be in assumpsit, trespass or ejectment, without regard to the ancient forms of pleading, and the plaintiff can be sent out of court only when upon his facts he is entitled to no relief either at law or in equity. {See note to section 307, Code of Civil Procedure of California; Pomeroy’s Remedies, sec. 65 et seq.) We are clearly of the opinion that the complaint states a cause of action.
Counsel assigns as error the action of the court in granting a nonsuit and entering judgment of dismissal. It appears from the transcript that after the jury was impaneled the plaintiff introduced certain evidence. The defendant was sworn on behalf of the plaintiff, and. testified, among other things, that he was a bondsman or surety for said Holsclaw, and that the defendant carried the mail something over about two months— November and December, 1899. The appellant was sworn as a-witness in his own behalf and testified that he carried said mail; that he was at Oliver’s house in Grangeville and had an
Counsel for plaintiff then offered to prove that plaintiff worked on the mail route between Grangeville and Florence, and that A. G. Smith and the defendant agreed to pay him for such work and labor the sum of $185; that plaintiff paid for and on account of expenses on said route, $175; that he received vouchers or due-bills from said Smith for that amount aggregating $360, and that after receiving these due-bills or vouchers the defendant agreed to pay them as soon as he received the pay from the government of the United States for the work performed; that defendant afterward received $550, and that $360 of it was due plaintiff by reason of his ninety-two days’ labor and $175 paid out in cash for expenses on the route, and that no part of said sum had been paid, and that when pay-
Section 4354, Kevised Statutes, provides in what cases an action may be dismissed or a judgment of nonsuit entered, and is composed of five subdivisions. The dismissal of this case, if made under any of the provisions of said section, was under subdivision 5 thereof, which provides that nonsuit may be entered by the court upon motion of the defendant when upon the trial the plaintiff fails to prove a sufficient case for the jury.
Hnder the provisions of said section 4352 above referred to, a nonsuit should not be granted until the plaintiff rests his ease or fails to prove a sufficient ease for the jury and rests.
The court also erred in not permitting the plaintiff to introduce evidence offered, showing what he did on said mail route from December 19th until the following April, and also erred in not permitting the plaintiff to prove that after he had received the due-bills referred to the defendant agreed to pay them as soon as he received the pay from the government of the Hnited States for the work performed, and that he did thereafter receive said pay from the government, and also to show that the $175 advanced for expenses was spent with the consent and approval of the defendant, and that subsequent to the performance of said services the defendant had- agreed to pay the full amount of the money so advanced and for the work performed on said mail route.
For the reasons above given, the judgment must be reversed and set aside and the cause remanded, with instructions to the trial court to sustain the demurrer of the defendant to the third, fourth and fifth defenses set up in the answer, and for further proceedings in harmony with the views expressed in this opinion. The costs of this appeal are awarded to the appellant.