58 Wis. 534 | Wis. | 1883
That part of the motion to strike out certain redundant matter from the complaint was granted, but that part requiring the complaint to be made more definite and certain,was denied; and the defendant appeals from that denial. There appears to be no indefiniteness or uncertainty about the allegations of the complaint, except it may be in the matter of damages. Most. of the other defects in this respect, complained of, concern facts more especially within the knowledge of the defendant. But, in respect to the damage complained of, it is proper that the defendant should be informed what part of such damages is claimed to have arisen from the failure to furnish cars in proper time as agreed, and what part is claimed to have arisen by the negligent running of the train and delays on the route.
It seems to us that the language of the complaint in this respect can have but one meaning, and that is, that no damage whatever is claimed from the negligent running of the train or delays on the route, but that all of it is predicated upon the delay in furnishing the cars at the depot named according to the contract. The allegation is that “ the defendant disregarded its duty,” etc., “ and its assurance and agreement,” etc., “ and neglected and refused to provide said cars at the time appointed, and as requested and promised as aforesaid, for several days, to wit, about four days.” Then, after charging that the defendant company “ neglected and refused to carry said stock to Chicago with reasonable diligence,” it alleges the arrival of the plaintiff with his said stock at Chicago “ about four days later than he would have done had the cars been provided as ordered
By the Court.— That part of the order appealed from is affirmed, and the cause remanded for further proceedings according to law.
