Henry Investment Co. v. Semonian

40 Colo. 269

• Court: Supreme Court of Colorado
• Decided: April 15, 1907
• Docket: No. 5308; No. 2946 C. A.
• Status: Published

Opinion

Mr. Justice Campbell

delivered the opinion of the court:

The complaint contains seventeen distinct causes of action separately stated, substantially the same in form, and each resembles the common-law common count in assumpsit. A demurrer thereto on the grounds of insufficiency and ambiguity was overruled, and the defendant stood by it, and judgment went for plaintiff on the merits. The only error argued concerns the ruling on the demurrer.

This manner of pleading under the code, though hardly to be commended, is not obnoxious thereto. In Campbell v. Shiland, 14 Colo. 491, it is held that: “A count in indebitatus assumpsit, framed substantially as required at common law, is now held to be a sufficient compliance with the code mandate as to allegations of fact.” See, also, Wilcox v. Jamieson, 20 Colo. 158. There is no merit in this assignment.

There is another substantial reason for affirmance. The-abstract shows that plaintiff was allowed to, and did, amend his original complaint against which this demurrer was aimed, but what the amendment was, the abstract does not show. It may have contained averments that entirely obviate the alleged uncertainties.

The judgment is affirmed. Affirmed.

Chief Justice Steele and Mr. Justice Gabbert concur.