Lehner v. McLennan

WORKS, J.

Plaintiff sued defendants upon a contract for the fumigation of their orchard. Defendants cross-complained for damages to their trees and fruit because of the alleged negligence of plaintiff in his performance of the agreement to fumigate. Judgment went for plaintiff upon both controversies and defendants appeal.

Appellants’ first contention is that the complaint is insufficient,'as tested by the demurrer which was interposed to it and which was overruled. The text of the complaint is: “That within the two years last past, and on or about October 7th, 1918, the defendant, Sue A. McLennan, became indebted to plaintiff in the sum of three hundred sixteen dollars and fifty cents for work and labor performed at her special instance and request, and materials furnished with said work and labor, and that said defendant, Sue A. McLennan, expressly agreed to pay said sum of three hundred sixteen dollars and fifty cents for said work and labor upon a specific contract to do said work and labor, at said agreed price.” The demurrer to this pleading was both general and special, the specific grounds being that the complaint is uncertain and ambiguous in that the terms of the alleged contract cannot be ascertained from it.

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In making their point appellants direct attention to the allegation that defendant Sue A. McLennan agreed to pay for respondent’s work and labor “upon a specific contract.” They contend that this averment states but a con

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elusion of law and that it makes the assailed pleading obnoxious to the demurrer. Up to the point where the language mentioned is used the complaint is a fair example of pleading under the common counts, and the clause to which objection is taken may be regarded, very properly, as surplusage. Even, however, if it were not so viewed, it does not render the complaint demurrable on special grounds as stating a conclusion of law, for the common counts, as ordinarily couched, present in their entirety nothing more than a succession of conclusions. After stating the well-settled rule that a “common count” is not subject to general demurrer, the supreme court said, in

Pike

v.