O'Brien v. Chicago, Milwaukee & St. Paul Railway Co.

20 N.W. 738, 64 Iowa 411

• Court: Supreme Court of Iowa
• Decided: October 7, 1884
• Status: Published

Opinion

Rothrook, Oh. J.

The petition of which complaint was made by defendant, omitting the formal parts, is as follows:

“ That the defendant is justly indebted to him (plaintiff) in the sum of fourteen dollars and twenty-five cents for services performed for defendant, (at its verbal request, with its knowledge and consent, and not under written contract,) in putting up stock-yards during the month of February, 1882, at Davis Junction and Tucker Siding, in Illinois.

“That said sum is now due and unpaid. Wherefore, plaintiff asks for judgment against defendant for fourteen dollars and twenty-five cents, and costs.”

The demurrer was to the effect that the petition on its face shows that the cause of action is brought on an account, and the items thereof, are not set out in the petition, nor a copy thereof attached thereto.

We think the cause of action does not necessarily embrace separate items of account. Under this petition, it would have been perfectly competent for the plaintiff to prove that lie built the stock yards for the defendant at its request, and that the labor expended thereon was reasonably worth fourteen dollars and twenty-five cents. It was not necessary for him to prove any separate items. He could establish the allegations of the jietition without that, and by proving the value of the work he did as a whole.

' Some question is made about the certificate of the judge authorizing the appeal. There is some doubt as to the question made, growing out of an agreement of counsel, and, by reason thereof, we have thought it better to dispose of the case on its merits.

Arrirmed.