Hancock v. Clark

WORKS, J.

This is an action to recover for the construction of a house under a builder’s contract. Plaintiff had judgment against one of the defendants and that defendant appeals.

[1]

One question presented by the ease is whether the complaint states facts sufficient to constitute a cause of action. At the trial the defendants moved for a judgment on the pleadings on the ground that it did not, and the motion was denied. The alleged defect in the complaint lies in the failure of respondent to plead in full the contract upon which he relies for a recovery of the amount due him for building the house, the plans and specifications which were a part of the agreement not being pleaded either as exhibits or according to their legal effect.

[2]

While it is well settled that plans and specifications are part of the contract to which they relate, as an examination of them is necessary to ascertain the complete agreement between the parties, they are not part of the agreement in such a sense that they must be pleaded in a complaint upon the agreement (9 C. J. 867). The reason for this rule is stated in an early case to be that plans and specifications “consist sometimes of extensive and complicated plates of drawings, which it would often be exceedingly inconvenient, if not utterly impracticable to attach to and make a part of the pleadings in the case”

(Learmonth

v.

Veeder,

11 Wis. 138); and it is at once apparent that it would be impossible to plead plans according to their legal effect. The complaint stated a cause of action.

[3]

The contract, made part of the complaint as an exhibit, refers to the plans and specifications as “attached herewith” and as “hereunto annexed.” During the trial the plans and specifications, not being attached to the contract, were offered in evidence after the taking of testimony tending to identify them as the ones referred to in the contract. This testimony was to the effect that the offered plans and specifications were furnished to respondent by appellant, that they were signed by her husband, her co-defendant, in her presence at the time of the execution of

[279]