Orme Rice Co. v. Cortes Hermanos

12 P.R. Fed. 308

Opinion

OdliN, Judge,•

delivered tbe following opinion:

In tbis case tbe plaintiff, by leave of tbe court, filed on March 11, 1921, an amended complaint. On April 25, 1921, a demurrer to tbis amended complaint was filed on bebalf of tbe defendants. Tbis demurrer bas been argued both orally and in writing by tbe respective counsel in tbis case.

The court finds it necessary to sustain, the demurrer to the amended complaint upon the ground that said amended complaint fails to state a cause of action, in that there is no allegation in said amended complaint that a demand was made by the plaintiff upon the defendants before the commencement of this action for the payment of the amount alleged by the plaintiff to be due from the defendants arising from the award or awards set forth in ¶¶ G-ll, inclusive, of the said amended complaint.

The court is of the opinion that it is necessary for the plaintiff in an action of this character to allege and prove a demand before commencing a suit.

Therefore, the demurrer to the amended complaint must be sustained and the plaintiff is allowed ten days in which to file a second amended, complaint, if the plaintiff shall so desire. Otherwise this action shall be dismissed and the plaintiff shall pay the costs of this proceeding.