Jones v. Better Homes, Inc.

316 P.2d 256, 79 Idaho 294, 1957 Ida. LEXIS 219

• Court: Idaho Supreme Court
• Decided: October 3, 1957
• Docket: 8476
• Status: Published

Opinions

McQUADE, Justice.

Appellant, in his amended ' complaint directed against respondent, alleges: That in Ada County District Court case No:. 25607, Kay K. Harrison, plaintiff, obtained judgment December 15, 1954,; for $722.27 against appellant Garland J. Jones (also, known as Garland Jones), Clyde Jones, R. L. Jones (also, known as Allen L. Jones) and Addie Mae Jones (also known as Addie M. Jones), doing business as Boise Speedway, defendants; that the judgment became a lien upon Lots 9 and 10 of Brook-side Place in Ada County, Idaho; that on March 14, 1955, Allen L. and Addie M. Jones, husband and wife, sold said real property and delivered their warranty deed 'therefor to respondent; that as part of the purchase price respondent', acting through its agent and secretary, orally agreed to pay the Harrison judgment, then a lien upon the real property, which agreement had not been rescinded; that respondent having failed to pay the judgment as agreed, the sheriff, acting under a writ of execution in said case of Harrison v. Jones, levied upon moneys of appellant on deposit in a bank; that the bank, July 30, 1955, paid over íó the sheriff the amount of the judgment of $722.27, plus interest and costs of $49.28, a total of $771.55, from plaintiff’s moneys; that the sheriff paid the same to the account of Harrison, the judgment creditor, and returned the writ satisfied; that thereupon the judgment was caused to be shown satisfied of record; that, by reason of respondent’s breach of its agreement to'pay'the Harrison judgment, appellant sustained the loss of $771.55, special damage; and ,$5,00Q general -'damage for impairment of credit and injury to the business, for which he prays judgment.

January 13, 1956, respondent generally and specially demurred to the amended complaint and moved to strike certain portions thereof. March 2, 1956, the trial court sustained in part and denied in part the motion to strike and the demurrer.

Appellant refused to amend within the time the trial court allowed him so to do. The trial court thereupon, March 15, 1956, entered judgment of dismissal of said action with prejudice, from which appellant perfected an appeal.

Paragraph one of the defendant’s demurrer which was sustained by the trial court is two-fold. It is impossible to ascertain upon which ground the Court based the order sustaining the demurrer, therefore, the order of the trial judge will be construed as sustaining the demurrer on both grounds, to wit: The complaint failed to allege facts to bring the plaintiff within an actionable third party beneficiary theory, and secondly, the action violated the Statute of Frauds by requiring a person to answer for the debt of another by way of an oral promise.

The trial court also sustained paragraph three Of the defendant’s demurrer to paragraph fivé-of the amended complaint'on the grounds 'and for the reasons that the amended complaint is uncertain, ambiguous and unintelligible in that it cannot be áscertained how plaintiff was inconvenienced, how his credit was impaired and his business injured, or why it was impossible for him to pay his obligations.

The trial court struck out the allegation setting up the third party beneficiary and the allegation that damages to credit and business were compensable- by the defendant’s failure to perform under the terms of the contract.

The amended complaint alleges the making of an executory contract expressly for the benefit of the judgment debtors, including the plaintiff, and further recites the contract has not been rescinded, but has been fully performed on the part of the grantors. The appellant couched the allegations of his complaint in the language of the statute, and this manner of pleading has been construed as sufficient to inform the defendant of the issues and the relief sought. California announces this principle clearly and forcefully in Quinn v. Mathiassen, 4 Cal.2d 329, 49 P.2d 284, at page 285:

“* * * The complaint is phrased largely in the language of the sections of the Code under which the action is brought. Ordinarily, it is sufficient •to frame a pleading in the language of the statute germane to the action. It is "true that the Complaint is not as full 'or specific or as descriptive in its references as it may well havé been. Nevertheless,- neither the défendant nor the intervener seems to have had the slightest doubt as to the nature of the action or the kind of relief sought by it. * * *"

It has been further stated in C.J.S.:

“No recovery can be had under a statute unless plaintiff alleges exactly those facts which the statute names as the basis for the right conferred, but only such facts as the statute itself sets forth as the circumstances under which an action may be maintained need be alleged.” 71 C.J.S. Pleading § 86 a., p. .203.

“ * * * a pleading in the language of the statute is sufficient if such language reasonably informs defendant of what he will be called on to meet at the trial, although not otherwise * * 71 C.J.S. Pleading § 86 c., p. 205.

It is to be noted that we are not dealing with proof in this instance, but solely as to whether such allegation states a cause of action.

The second portion of paragraph one of defendant’s demurrer relies upon the Statute of Frauds, I.C. sec. 9-505:

“In the following cases the agreement is invalid, unless the same or some note or memorandum thereof, be in writing and subscribed by the party charged, or -by his agent. Evidence therefore, of the agreement can not be received without the writing or secondary evidence of its contents:

******

“2. A special promise to answer for the debt, default or miscarriage of another, except in the cases provided for in the next section. * * *”

This contention has no merit in view of I.C. sec. 9-506:

“A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing:

“1. Where the promise is made by one who has received property of another upon an undertaking to apply it pursuant to such promise; or by one who has received a discharge from an obligation in whole or in part, in consideration of such promise. * * * ”

As pleaded in the amended complaint, this transaction was taken out of the Statute of Frauds because it had been partially executed by the transfer of the property to the defendant by two of the debtors. I.C. sec. 9-506.

There will be no disposition of paragraph three of the demurrer in view of the ruling on the defendant’s motion to strike. It was error for the Court to strike from the amended complaint the allegation setting up the third party beneficiary, in light of the holding herein that an allegation in the language of the statute is sufficient, and therefore should not be stricken as a conclusion, evidence, immaterial, or an unnecessary allegation, as suggested by the defendant.

That portion of the motion to strike the allegation of general damages as to impairment of business and credit was well taken under the principle established by this Court, wherein it was said in O. A. Olin Co. v. Lambach, 35 Idaho 767, 209 P. 277, 278, 44 A.L.R. 354:

“ * * * Any rule of damages adopted should permit the recovery of such damages as may be just. The established rule in actions for breach of contract is that only such damages will be allowed as fairly compensate the injured party for his loss. * * * ”

See also Jensen v. Woofers, 56 Idaho 595, 57 P.2d 340.

The judgment is reversed and the cause remanded to the trial court with instructions to reinstate the cause and to proceed in accordance with this opinion.

Costs to appellant.

KEETON, C. J., and TAYLOR, J., concur.