Miller v. Brown

HANSON, J. pro tem.

The appeal is taken from a judgment entered on an order sustaining a demurrer to the sixth amended complaint after the plaintiff had refused to avail himself of the right to amend. The sixth amended complaint was set forth in two counts: The first was for damages for breach of an alleged oral contract; the second sought a recovery for work and labor alleged to have been rendered pursuant to an entirely separate oral contract.

The defendant filed a general and special demurrer to each of the counts of the complaint. In ruling that the entire complaint was demurrable the trial court did not state whether its decision was based on the general, the special or both types of demurrer.

We do not think the first count was demurrable for failing to state a cause of action, but we do think it was uncertain and ambiguous and accordingly, that the special demurrer was properly sustained on those grounds.

The first count of the sixth amended complaint alleged that an oral contract was entered into between the plaintiff and the defendant on or about September 15, 1947, by the terms of which the parties entered into a joint venture to plant, cultivate, harvest and sell gladiolas from 200,000 bulbs to be furnished by plaintiff which were to be grown on lands owned by the defendant. It was further alleged that the venture was to begin with the 1947 gladiola growing season and end with the close of the 1948 season; that title to the bulbs was at all times to be retained by plaintiff;

that plaintiff was to furnish his work and labor in the planting, care and cultivation of the growing plants;

supervise any hired help which defendant might furnish; that plaintiff was to furnish a garden tractor and tools for furrowing that portion of the land on which the bulbs were planted; that he likewise was to harvest and market the flowers; collect the sales price and divide the sale proceeds equally between plaintiff and defendant. It is next alleged that the defendant was to furnish the water necessary to irrigate the flowers;

to furnish his own labor in the planting, care and cultivation of the bulbs and in addition any necessary hired help which was needed to plant, care for and cultivate the bulbs;

and that the defendant was also to assist the plaintiff in cutting and marketing the flowers.

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