Levi v. Sockolov

RICHARDS, J.

This is an appeal from a judgment in plaintiff’s favor and from an order denying the defendant’s motion for a new trial.

The action was brought to recover the sum of $1,563 alleged to have been paid by the plaintiff upon the purchase price of a lot upon which there was at the time a building in course of construction, the defendant agreeing to complete the construction of said building in a workmanlike manner, and to deliver the same to the plaintiff free and clear of encumbrances with the exception of an existing mortgage for fifteen thousand dollars, the plaintiff agreeing to take the premises when so completed and to pay

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the sum of twenty-nine thousand dollars as the whole purchase price thereof. The plaintiff avers that the defendant violated this agreement by his failure to construct and complete the building in a workmanlike manner or in accordance with the contract, and he therefore prays to recover the sum paid on account of the purchase price. There is also a second count in the complaint wherein the plaintiff seeks to recover the sum of $407 alleged to have been laid out and expended for the defendant’s use and benefit.

The first contention of the appellant is that the court should have sustained his demurrers to both counts of the complaint. As to the first alleged cause of action the appellant appears to concede that it might be sufficient as against the assault of his general demurrer; but urges that his special demurrer to that count should have been sustained. The complaint in that count set out the contract between the parties

in Tiaeo verba,

and proceeded to allege that the defendant had breached the same by not completing the building in a workmanlike manner. He then proceéded to set forth in detail a number of specific defects in the work of construction. The defendant’s objection seems to be that the plaintiff did not go further in evidentiary matter in support of his general averment that the structure was not completed in a workmanlike manner; but we think that the pleader was not required to set forth all of the evidence in his complaint, but only to call attention to his chief objections to the work, and hence that the complaint herein was sufficiently specific to inform the defendant as to the nature of the plaintiff’s demand.