M. T. Mollison Co. v. O'Brien

188 F. 539, 1911 U.S. App. LEXIS 5208

Opinion

PLATT, District Judge.

The complaint in this action is almost as voluminous as the moral law; but, after digestion, the issues are fairly simple.

The causes of demurrer are not made as specific as they ought to be, and might he disposed of on that ground; but such action would probably lead to amendments, and it may be better, if I can undér-stand the situation from the arguments, to decide them on the merits.

The most serious ground of criticism is that the action is prematurely brought, and that the decision of any issues which can now be framed would embarrass later causes of action which might result favorably to the demurrant.

[ 1 ] The complaint, in a general way, shows that the plaintiff and defendants entered into a contract, set forth as Exhibit A, under which certain work was performed by the plaintiff, for which he was to re-r ceive compensation at a price specified, and for certain things to be done a reasonable compensation; that the plaintiff performed all the agreements on its part to be performed, so far as it was possible to perform them; that it was ready and willing to perform all its agreements unde? the contract, but was prevented by the' defendants without just reason, who by so doing breached their contract. This seems to be the statement of a good cause of action.

[2] Another criticism is that the complaint joins causes of action on contract and tort in one count. The complaint sets forth that under the contract plaintiff was to furnish labor, materials, tools, and appliances in the construction of a certain building at agreed and reasonable prices, and.that after plaintiff had gone part way, and done what it could, the defendants broke the contract by preventing, without just reason, the plaintiff from going on, and converted to its own use plaintiff’s materials and appliances. That is good pleading under our practice act as construed by our highest state court.

As to the criticism presented in the last cause of demurrer, that the complaint leaves it uncertain whether it is intended to hold defendants jointly liable, or to hold one or both of defendants separately, it is understood that the plaintiff expects to drop Wadsworth, which will leave the defendants free from doubt in that respect.

Ret the demurrer be overruled. Plaintiff should then drop Wads-worth, and defendant O’Brien should proceed in the usual way.