Lescaze v. Town of Ansonia

Connecticut Superior Court

Lescaze v. Town of Ansonia

6 Conn. Super. Ct. 384, 6 Conn. Supp. 384, 1938 Conn. Super. LEXIS 145

CourtConnecticut Superior Court

DecidedOctober 5, 1938

DocketFile #55279

StatusPublished

Cited by2 cases

This text of 6 Conn. Super. Ct. 384 (Lescaze v. Town of Ansonia) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lescaze v. Town of Ansonia, 6 Conn. Super. Ct. 384, 6 Conn. Supp. 384, 1938 Conn. Super. LEXIS 145 (Colo. Ct. App. 1938).

Pincite

Opinion

*385 CORNELL, J.

The complaint is in three counts, the right to recover in each of which predicates upon an alleged written agreement annexed to the complaint. The latter purports to be between the defendant Town of Ansonia, therein desig' nated as the “owner” and the plaintiff, “architect and Vernon Sears, Associate, hereinafter called the ‘Architect’.”

The complaint, however, states that the defendant “employed the plaintiff as architect” etc., and says nothing about his being engaged as “Architect” as that term is employed in the agreement referred to, i.e., as connoting both the plaintiff and Sears. This may be suggestive of a variance, or it may not, but in any event, the Court cannot assume, whatever confusion may be suggested by reading the complaint together with the written agreement, that “architect” as used in the complaint is “Architect” as employed in the contract. The difference be* tween the two is the distinction between the exercise of a sev' eral and that of a joint right. In a test of the sufficiency of a cause stated in a complaint, it is not the writing annexed to it and incorporated in it by reference, which is alone to be considered but also the allegation of the complaint itself. Riverside Coal Co. vs. American Coal Co., 107 Conn. 40, 45. This done in the present instant, it becomes apparent that whatever other infirmities, if any, the pleading may have, it cannot be said with certainty that the plaintiff is intent upon enforcing any liability which may arise from an undertaking on defend' ant’s part with plaintiff and Sears.

Demurrer overruled.

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*385 CORNELL, J.

The complaint is in three counts, the right to recover in each of which predicates upon an alleged written agreement annexed to the complaint. The latter purports to be between the defendant Town of Ansonia, therein desig' nated as the “owner” and the plaintiff, “architect and Vernon Sears, Associate, hereinafter called the ‘Architect’.”

The complaint, however, states that the defendant “employed the plaintiff as architect” etc., and says nothing about his being engaged as “Architect” as that term is employed in the agreement referred to, i.e., as connoting both the plaintiff and Sears. This may be suggestive of a variance, or it may not, but in any event, the Court cannot assume, whatever confusion may be suggested by reading the complaint together with the written agreement, that “architect” as used in the complaint is “Architect” as employed in the contract. The difference be* tween the two is the distinction between the exercise of a sev' eral and that of a joint right. In a test of the sufficiency of a cause stated in a complaint, it is not the writing annexed to it and incorporated in it by reference, which is alone to be considered but also the allegation of the complaint itself. Riverside Coal Co. vs. American Coal Co., 107 Conn. 40, 45. This done in the present instant, it becomes apparent that whatever other infirmities, if any, the pleading may have, it cannot be said with certainty that the plaintiff is intent upon enforcing any liability which may arise from an undertaking on defend' ant’s part with plaintiff and Sears.

Demurrer overruled.

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Bluebook (online)

6 Conn. Super. Ct. 384, 6 Conn. Supp. 384, 1938 Conn. Super. LEXIS 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lescaze-v-town-of-ansonia-connsuperct-1938.

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