Ryder v. Thomas

32 Iowa 56

• Court: Supreme Court of Iowa
• Decided: July 26, 1871
• Status: Published

Opinion

Cole, J.

It is enacted by our code (Kev., § 2960), “ in an action, set-off, counterclaim or cross demand on a bond with conditions, the party suing thereon shall, in his pleading, notice the conditions and allege facts constituting the breach or breaches relied on.” The pleading demurred to is vulnerable to the objection that the conditions of the bond are not noticed m the pleadmg. It is true that a copy of the bond is annexed to the cross demand as an exhibit, but that is not a compliance with the requirements of the above section. Again, the pleading does not allege the facts constituting the breach relied on, it does not allege the non-payment of the damages which the defendant has sustained.

The demurrer seems to us technical, and yet, it finds support in the language of the section above quoted. And, further, the defendant had the clear right to amend his pleading, and correct even this technical defect. Kev., § 2977. It was both easier and cheaper to amend than to prosecute an appeal. If the cross demand was meritorious, such course would doubtless have been pursued; and in any event it still remains for defendant to prosecute, if he shaE be so advised. In this technical contest he must fail who was first wanting in technical precision.

Affirmed.