Weiner v. Lee Shing

| Or. | May 19, 1885

Thayer, J.

This appeal is from a judgment for the plaintiff, rendered in an action to recover money. The action was tried by a jury, and resulted in a verdict for the respondent for the sum of $1,000, the amount claimed to be due. Among the questions raised upon the appeal is that the complaint does not state facts sufficient to constitute a cause of action. The following is the substance of the complaint: —

“ That Lee Shing and Lee Shing Tin are, and during all the times herein mentioned were partners, doing business at Portland, Oregon, under the style and firm name of ‘ Q,uon Wo On/ and that during the year 1883 said above-named defendants and Ah Eoo employed Gaston & Beebe to perform services, for which they promised and agreed to pay said Gaston & Beebe the sum of $1,000 on or before May 1, 1884; that on May 16, 1884, said Gaston <fe Beebe, for a valuable consideration, assigned said claim to plaintiff, who now owns the same, and upon which there is now due and owing the sum of $1,000. Plaintiff therefore asks judgment against defendants for $1,000, and costs and disbursements.”

The respondent’s counsel claims that if the complaint would have been held insufficient upon demurrer, by reason of any defect apparent upon its face, such defect has been cured by verdict. The rule is no doubt correct, that where the statement of the plaintiff’s cause of action, and that only, is defective or inaccurate, tbe defect is cured by a general verdict in his favor. But where no cause of action is stated, tbe omission is not cured by verdict. (Gould Plead. 463, § 13.) Tbe reason of tbe rule as stated in tbe section is there explained by tbe following quotation from a decision made by Lord Mansfield: —

“To entitle-him [tbe plaintiff] to recover, all circumstances necessary in form or substance to complete tbe title so imperfectly stated must be proved at tbe trial; and it is, therefore, a fair presumption that they were proved.”

It is not always an easy matter to determine whether such defect’ is in tbe statement of tbe title or cause of action, or a defect in the title or cause of action. Tbe verdict does not supply any fact omitted from tbe complaint, but it establishes .every reasonable inference that can be drawn therefrom. If the complaint is defective in not containing some material allegation, tbe defect will not be cured by verdict. In this case, tbe gist of the action was a promise to pay tbe $1,000, but that promise, standing alone, was nudum pactum. No right of action in such case arises in favor of tbe promisee in consequence of its breach. Tbe facts showing that tbe promise was binding bad to be alleged. Tbe plaintiff, in such a case, must show by bis complaint, not only that tbe defendant made a promise that he bad broken, but also that tbe promise was made upon sufficient consideration ; and unless the allegation in this complaint, that the defendant employed Gaston & Beebe to perform services, directly or by necessary implication- avers a sufficient consideration for tbe promise to pay tbe $1,000, tbe cause of action was defective.

Tbe said allegation is tbe statement of an executory consideration. Tbe employment of Gaston & Beebe was to “perform services.” It was something to be done by those parties. No other construction can be placed upon tbe words employed. In declaring upon such a promise it is always necessary to state tbe particular consideration upon which it was founded, and it is essential that tbe consideration stated should be legally sufficient. (1 Cbitty Plead. 293.) Tbe learned author also says (pp. 295, 296) that in the statement of an executory consideration a greater degree of certainty is required than in that of an executed consideration. “The consideration and the promise of the defendant are two distinct things. In order to show that the plaintiff possesses a right of action, it is, in general, necessary to aver performance of the consideration on his part, which allegation, being material and traversable, must be made with proper certainty of time and place. This obligation of averring performance imposes upon the plaintiff the necessity of stating the consideration with a greater degree of certainty and minuteness than in the case of executed considerations; for the court would otherwise be unable to judge whether the performance averred in the declaration were sufficient.” These requirements are certainly very reasonable. A naked promise to pay a sum of money, unless in a promissory note or in an instrument under seal, imports no consideration. The first,inquiry of the mind is, where such promise is alleged to have been made, what was it for? The plaintiff who seeks to enforce the promise must answer that inquiry satisfactorily. He must show that it was made upon a consideration legally sufficient, and if an executory consideration, that he has performed it, or legally obligated himself to perform it, and been ready and willing to carry out his undertaking in that behalf; if an executed consideration, that it was performed by the promisee at the request of the promisor.

These rules of pleading have been maintained by able courts for centuries; they are the soul of reason, and should be enforced between all classes of persons involved in litigation, of whatever complexion. It is hardly necessary to say that the respondent’s complaint wholly fails to conform to the rules referred to. It fails to disclose what the employment was. The court could not know from it whether the employment was to do a lawful or an unlawful thing, and there is no pretense in the complaint that the parties performed it, whatever it was. The respondent may as well have counted upon the breach of a bare promise to pay the money as upon the meager facts alleged. All that can be claimed to be alleged is an employment to do services. The complaint would have been improved by a statement showing what Messrs. Gaston & Beebe were employed to do, but it would then have been totally defective without a further statement showing that they had performed it, or, as before mentioned, had legally obligated themselves to perform it. It is error to render a judgment upon a defective complaint. The judgment of the courtis a conclusion of law from the facts contained in the whole record, and if that discloses a complaint radically defective, the plaintiff is not entitled to any judgment. (Gould Plead, p. 459, § 3.)

Upon the view we have taken, the judgment appealed from is not supported by the complaint in the action, and must therefore be reversed. The case will be remanded, and the defendant may apply to the court below for leave to amend his complaint.