Tyrrell Rice Milling Co. v. Sepulveda

12 P.R. Fed. 211

Opinion

HamxutoN, Judge,

delivered tbe following opinion:

The complaint in this, case contains counts on four causes of action, but these seem to be based upon the same sale of rice by plaintiff to defendant, with the addition in the second, third, and fourth causes of other elements of damage. The demurrer is directed to each of these causes of action.

1. The demurrer to the first cause seems to be good in that the said first cause of action, while suing upon'a contract for the sale of 300 sacks of rice and stating that the plaintiff complied with.-.the terms of said contract and tendered delivery, does not say whether the defendant accepted the rice and refused to pay for it, or whether he refused to accept the rice and the suit is for damages. On account of this uncertainty the demurrer is sustained,.

The same defect underlies all the causes of action inasmuch as each one restates the main allegations of the first cause. The other causes of action do not seem to be otherwise demur-rable.

'*2. The demurrer that the four counts are each for only $3,000 -while the prayer is only for $3,469 does not seem to be well taken. The plan of the complaint seems to1 presuppose the samo sale in all four counts, but adds in the second cause of, action a now contract together with certain charges.. ' The third cause seems to take the same course, stating the-’-accord in different language. The fourth seems to pursue the same course except that it embraces a draft and protest, omitting the other charges. The several contracts described are based upon the same $3,000.deal, looted at from different points of view and with different additional elements of damage. There could be but. one recovery, and there seems to be no impropriety in praying for but one recovery.

The demurrer is sustained to the first point above mentioned and overruled as to the others.

It is so ordered.