Washburn v. Moorman Mfg. Co.

25 F. Supp. 546, 1938 U.S. Dist. LEXIS 1690

• Court: District Court, S.D. California
• Decided: November 9, 1938
• Docket: 1420
• Status: Published

Opinion

NETERER, District Judge.

An amended complaint alleging jurisdictional facts, and the relation of the parties, states “that defendant became indebted to plaintiff upon an implied contract for the exclusive use of the photograph and name of plaintiff’s steer ‘Big Jim’, in the advertising of defendant’s animal food and products, in the sum of fifty thousand ($50,-000.00) dollars, the reasonable value thereof, all of which is due and unpaid.”

The defendant moves to dismiss, not sufficient facts being stated. Plaintiff contends the complaint is sufficient under Federal Rules'of Civil Procedure, 28 U.S.C.A. following section 723c; and calls attention to forms given, which he claims in effect to have copied.

These forms are merely to indicate the simplicity and brevity of statement which the rules contemplate. See Rule 84. Rule 8 requires that the complaint shall contain (a) (2) “a short and plain statement of the claim showing that the pleader is entitled to relief”, (e) (1). “Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.”

In the instant case no fact is stated to support the conclusion of “implied contract” to pay. When the facts are simply and concisely stated in lucid fashion, and support such conclusion, the parties will be placed upon proof, otherwise the action fails.

The motion to dismiss is sustained. Plaintiff may have 10 days to further plead.