Pioneer Fuel Co. v. Hager

Supreme Court of Minnesota

Pioneer Fuel Co. v. Hager

58 N.W. 828, 57 Minn. 76, 1894 Minn. LEXIS 223

CourtSupreme Court of Minnesota

DecidedApril 20, 1894

DocketNo. 8626

StatusPublished

Cited by4 cases

This text of 58 N.W. 828 (Pioneer Fuel Co. v. Hager) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Pioneer Fuel Co. v. Hager, 58 N.W. 828, 57 Minn. 76, 1894 Minn. LEXIS 223 (Mich. 1894).

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Opinion

Canty, J.

The complaint in this action alleges “that defendant is indebted to the plaintiff in the sum of $321.23 upon an account [77]*77for goods sold and delivered to him at his instance and request” between certain dates. The defendant demurred on the ground that complaint stated no cause of action. The court below overruled the demurrer, and defendant appealed.

This is an attempt to plead in the common-law form of indebitatus assumpsit, but the common-law form required the declaration to state that the defendant is indebted to plaintiff in a sum named for goods sold by the plaintiff to the defendant. This complaint does not allege that the goods were sold by the plaintiff, and such defect was fatal at common law. Chit. Pl. 33, note c (16th Am. Ed.), and Fenton v. Ellis, 6 Taunt. 192, cited therein. See, also, Cathrow v. Hagger, 8 East, 106. It is true that these were cases where the defect was in the affidavit for the arrest of the defendant, but the principle is the same, and Cliitty so regards in citing them as authority as to the effect of a similar defect in the declaration.

“In assumpsit or covenant for the payment of money the defendant may be arrested as a matter of course on an affidavit shortly stating the cause of action.” 1 Tidd, Pr. 171. The learned court below states in his memorandum that this complaint is exactly similar to that in Abadie v. Carrillo, 32 Cal. 172, which was referred to as authority by this court in Solomon v. Vinson, 31 Minn. 205, (17 N. W. 304.) In this he is mistaken, and has undoubtedly been misled by the syllabus in the California case, but the statement of the case shows that the complaint was according to the common-law form.

We are of the opinion that the courts in the code states have •sacrificed the principles of code pleading more than they ought to have done in adopting this common-law formula at all, and that we should not outdo the common law itself by reducing the formula still more, and making it still more in conflict with code principles. The complaint must at least be sufficient at common law, which it is not.

The order appealed from is reversed.

Buck, J., absent, took no part.

(Opinion published 58 N. W. 828.)

Application for reargument denied April 24, 1894

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Canty, J.

The complaint in this action alleges “that defendant is indebted to the plaintiff in the sum of $321.23 upon an account [77]*77for goods sold and delivered to him at his instance and request” between certain dates. The defendant demurred on the ground that complaint stated no cause of action. The court below overruled the demurrer, and defendant appealed.

This is an attempt to plead in the common-law form of indebitatus assumpsit, but the common-law form required the declaration to state that the defendant is indebted to plaintiff in a sum named for goods sold by the plaintiff to the defendant. This complaint does not allege that the goods were sold by the plaintiff, and such defect was fatal at common law. Chit. Pl. 33, note c (16th Am. Ed.), and Fenton v. Ellis, 6 Taunt. 192, cited therein. See, also, Cathrow v. Hagger, 8 East, 106. It is true that these were cases where the defect was in the affidavit for the arrest of the defendant, but the principle is the same, and Cliitty so regards in citing them as authority as to the effect of a similar defect in the declaration.

“In assumpsit or covenant for the payment of money the defendant may be arrested as a matter of course on an affidavit shortly stating the cause of action.” 1 Tidd, Pr. 171. The learned court below states in his memorandum that this complaint is exactly similar to that in Abadie v. Carrillo, 32 Cal. 172, which was referred to as authority by this court in Solomon v. Vinson, 31 Minn. 205, (17 N. W. 304.) In this he is mistaken, and has undoubtedly been misled by the syllabus in the California case, but the statement of the case shows that the complaint was according to the common-law form.

We are of the opinion that the courts in the code states have •sacrificed the principles of code pleading more than they ought to have done in adopting this common-law formula at all, and that we should not outdo the common law itself by reducing the formula still more, and making it still more in conflict with code principles. The complaint must at least be sufficient at common law, which it is not.

The order appealed from is reversed.

Buck, J., absent, took no part.

(Opinion published 58 N. W. 828.)

Application for reargument denied April 24, 1894

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58 N.W. 828, 57 Minn. 76, 1894 Minn. LEXIS 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pioneer-fuel-co-v-hager-minn-1894.

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