Lynd v. Caylor

1 Handy 576

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1855
• Status: Published

Opinion

Gholson, J.

This is an action brought to recover $240,/claimed to be due on a contract which was annexed to the petition as an exhibit. Upon looking into the contract, so far from being “an instrument for the unconditional payment of money only,” as required by Section 122 of the Code, under which the petition was filed, the plaintiffs are no parties to the contract. There is in it a provision, that commissions, due upon some real estate negotiation, shall be paid by the defendant to the plaintiffs ; but there is no averment to connect the plaintiffs’ claim with those commissions, or to show how the amount of the commissions was or could be ascertained.

It is irregular to make such a contract an exhibit to the petition, in an action brought for the commissions agreed to be paid. So far as that contract may be material to the recovery of the plaintiffs, its substance should be briefly stated. Except in the cases specially authorized by the Code, each petition should embody in itself, and without reference to any other paper, or exhibit, the facts which constitute the cause of action.

The demurrer to the petition in this case will be sustained, but there will be leave to amend.