have paid the same, nor any part thereof; that the plaintiff is the owner and holder,” etc., stating the amount due, and making the usual demand of judgment. The defendant claimed that the complaint did not state a cause of action because it failed to allege that the amount due is due on the note and guaranty or on the guaranty, or from the defendant to the plaintiff, and failed to allege that the maker had not paid the note; also because the guaranty being executed after the note became due, and stipulating payment when due, is impossible and void. After disposing of the last objection by holding that the guaranty was payable at once, the court, by applying the rule of favorable construction prescribed by the code, pronounced the complaint sufficient. In an action against a railroad company for killing the plaintiff's horses, which had strayed upon the track and been run over, the only negligence charged upon the defendant at the trial was in reference to its construction and maintaining of its fences through which the animals escaped and reached the track. The sole allegation of the complaint was that the defendant "so carelessly and negligently ran and managed the said locomotive and cars, and the said railroad track, grounds, and fences, that its said locomotive and cars ran against and over the said horses." It was not even stated that the animals escaped through the fences. In pronouncing upon the sufficiency of this averment, it was said by the court that the best possible construction for the plaintiff which could be put upon the language was "that the defendant so negligently managed the fences that its train ran over the horses," and that, even under the liberal rule prescribed by the codes, this could not be taken as alleging a cause of action for negligently constructing the fences,

164.

1 Gunn v. Madigan, 28 Wis. 158, 163, The opinion of the court, after stating the positions of the defendant's counsel, proceeded: "The rule practically applied by him is, that a pleading must be construed most strictly against the pleader. He seems to have forgotten that this stern rule of the common law is repealed by the code, and in its place a more beneficent one has been enacted. Looking at the complaint in the light of this new rule, it seems to us that it states a cause of action. Indeed, we are not quite sure that it is necessary to invoke

the aid of that rule to enable us to hold that it is a good pleading. It sets out the contract and the alleged breach thereof, the interest of the plaintiff and the liability of the defendant, and demands the proper judgment. Ought we to demand more? The only real defect of the pleading is, that, from the grammatical construction of a single clause, it does not allege that the note was not paid. "Yet the said makers of said note, nor the said defendant, have paid the same." It is thus made to aver that the makers have paid it.

or suffering them to be out of repair, so that the animals escaped through them on to the track.1

$428. * 534. Same Subject. In an action for trespass to land, the petition stated that "plaintiff by virtue of a contract with one E. was entitled to the exclusive possession of " the premises, "that subsequently to this contract the premises were purchased by the defendant with knowledge of the plaintiff's rights, that the defendant forcibly took possession and excluded the plaintiff," but did not allege that the plaintiff was ever in possession, nor the relation which E. bore to the land, nor the terms of the contract with him, nor that defendant's acts were wrongful. This petition, it was held, stated no cause of action, and was properly dismissed at the trial. In an action to foreclose a mortgage of land, the plaintiff obtained a preliminary injunction to restrain the removal of machinery which had been so affixed to the land as to become part of the freehold. A motion was made on the pleadings to dissolve the injunction on the ground that the complaint contained no allegations which could be made the basis of that relief. The clause relied upon by the plaintiff was the following: That the defendants had erected on the premises a manufacturing establishment, "and put therein machinery which had become part and parcel thereof," and that among other machinery which they put therein was a steamengine," etc., enumerating other articles. This was held to be a sufficient averment that the engine, etc., had become part of the realty. If the defendants desired a more explicit allegation they should have moved for that purpose, the manner of raising the objection which they had adopted being tantamount to a demurrer for want of sufficient facts. The complaint, in an action on a note against the maker and indorsers, alleged several successive indorsements until it was thus indorsed and transferred to one M., but omitted to state an indorsement and transfer from him to the plaintiff. It contained, however, the following averment, "that the plaintiff is now the lawful owner and holder of

1 Antisdel v. Chicago & N. W. Ry. Co., suits and issuable facts in legal actions. 26 Wis. 145, 147. A failure to prove this special averment would not defeat the cause of action; it would simply modify and limit the amount of relief to be obtained by the plaintiff; but it was certainly a necessary allegation for that purpose.

2 Garner v. McCullough, 48 Mo. 318. 8 Kimball v. Darling, 32 Wis. 675, 684. The allegation in question is an admirable illustration of the distinction between facts material to the remedy in equity

the said note, and the defendants are justly indebted to him thereon," etc. This was held to be a sufficient statement of the plaintiff's title; the defect, if any, was one which should be cured by motion to make the pleading more definite and certain.1 The material portion of the complaint in an action for work and labor simply stated that the plaintiff performed work "for the defendant at an agreed price of $26 per month." It was objected on demurrer that no request on the part of the defendant was alleged, but the pleading was held to be sufficient under the rule of construction adopted by the codes.2 In an action on a town treasurer's official bond, the complaint, after setting out the bond, averred the breach thereof in the following manner, simply negativing the conditions: "He has not duly and faithfully performed the duties of his office, and has not faithfully and truly accounted for and paid over according to law all the state and county taxes which came into his hands;" but it did not allege that any such taxes had ever come into his hands. This complaint was pronounced fatally defective on demurrer, as the facts constituting the breach should have been pleaded.3

§ 429. *535. Same Subject. The petition in an action against H. as maker and C. as indorser of a note set out the note made by H. payable to bearer and a guaranty thereon, “I guarantee the payment of the within note to C. E. [the plaintiff] or order,' signed by C., and added: "The defendant H. is liable on said note as maker, and the defendant C. as indorser and guarantor. The plaintiff C. E. is the holder and owner of said note. There is due from the defendants to the plaintiff on said note the sum of," etc. On demurrer by the defendant C., he was held to be absolutely liable as a guarantor, and that under the liberal rule of construction the allegations of the complaint imported a cause of action, and were sufficient. In an action by the vendee for

1 Reeve v. Fruker, 32 Wis. 243.

2 Joubert v. Carli, 26 Wis. 594, per Paine J. "The allegation that one has performed work for another at an agreed price per month or per day, must be held to fairly import that the agreement was prior to the performance of the work, and that the work was done in pursuance of it."

8 Wolff v. Stoddard, 25 Wis. 503, 505; Franklin Tp. Sup. v. Kirby, 25 Wis. 498. Dixon C. J. dissented in both cases.

4 Clay v. Edgerton, 19 Ohio St. 549. The court, after stating that the defendant C. was absolutely liable as a guarantor, added that the allegations above stated implied a transfer of the note from him to the plaintiff, and a consideration by means of such transfer. C. is thus shown to be an indorser, and is, as it appears, therefore held liable as a guarantor. This decision, in my opinion, cannot be supported on principle. It is such ruling as this that destroys the scientific character

fraudulent representations made on a sale, the complaint must allege that the plaintiff relied upon them; and the absence of such an averment will not be supplied by a statement of mere evidentiary matter tending to show the existence of that material fact, unless the evidence so stated is conclusive. In an action brought to recover damages for the conversion of chattels, the complaint was substantially as follows: That the plaintiff was on, etc., the owner of certain chattels; that he leased them to one S. by a written lease, in which he reserved the right to take possession of them, and to terminate the letting, whenever he should deem himself unsafe, or that the, chattels were not well taken care of; that S. took possession under the lease; that the defendant, who is a United States marshal, seized them while thus in the possession of S. under a process in bankruptcy against S.; that plaintiff demanded them from the defendant, who refused, etc.; that the plaintiff demanded the possession from the defendant "on the ground that the plaintiff deemed himself unsafe, and did not think that the property was well taken care of;" and that the defendant had converted the same to his own use. The complaint did not contain any further or more express statement that the plaintiff did as a matter of fact deem himself unsafe. A demurrer for want of facts was sustained, and the pleading was held insufficient because it did not show a right of possession in the plaintiff when the action was brought, in that it failed to allege any fact entitling him to terminate the letting, and to resume possession of his property.2 The petition in an action for conversion alleged that the defendant “had in his possession, and under his control, $5,000 in money, and $10,000 in hardware, stoves, etc., of the money and

and usefulness of the reformed system, and tends to bring it into discredit.

1 Goings v. White, 33 Ind. 125. This decision assumes that, although in accordance with the general doctrine, the principal fact and not the evidence of it should be pleaded, yet a statement of the evidence may under certain circumstances be sufficient to raise a substantial issue. If the principal fact be not alleged, but the details of evidence are given, and these are positive and conclusive in their nature, the pleading will not be bad on demurrer, although it will be subject to

amendment on a motion to make it more definite and certain.

2 Hathaway v. Quinby, 1 N. Y. S. C. 386. The construction given to the complaint in this case was certainly severe and technical, and hardly in accordance with the rule laid down in the code. The objection is for incompleteness and indefiniteness of the allegation. The plaintiff certainly does state, although perhaps in a partial manner, that he deemed himself unsafe. A motion was certainly more appropriate than a demurrer.

This

property owned by the plaintiff," and converted the same. was declared, on a motion to make the petition more definite and certain, to be a sufficient averment that the money and goods were the property of the plaintiff.1 If an action is brought on a bail bond given in a criminal proceeding, the complaint should allege that the person was released from custody upon the execution and delivery of the undertaking, and a pleading omitting this statement was held bad.2 Where a tender is essential to the plaintiff's cause of action, the complaint must either aver it in express terms, or must state a sufficient excuse for omitting it. In such a case the plaintiff alleged "that he has been ready and willing during all the time aforesaid, and has offered, to accept and take said conveyance, and to pay the balance of said purchase-money." This averment was pronounced to be insufficient, and the complaint was held bad on demurrer, as it neither stated a tender, nor an excuse for not making a tender. In actions brought to recover damages, an allegation that damages have been sustained is indispensable. As was said by the Supreme Court of California in a late decision, "it is not alleged in the complaint that the plaintiff has sustained damages, and therefore he is not entitled to judgment for damages.

4 Bohall v. Diller, 41 Cal. 532. See also Bradley v. Aldrich, 40 N. Y. 504, and supra, § * 84, note 3; and comp. Graves v. Spier, 58 Barb. 349, supra, § 81, note 2. The following cases furnish illustrations of allegations held to be sufficient or insufficient in a variety of ordinary actions of fraud, Smith v. Nelson, 62 N. Y. 286; Jones v. Frost, 51 Ind. 69; Arnold v. Baker, 6 Neb. 134; Nicolai v. Lyon, 8 Oreg. 56; Lafever v. Stone, 55 Iowa, 49; Ockenden v. Barnes, 43 id. 615; Pence v. Croar, 51 Ind. 329; Hess v. Young, 59 Ind. 379; Sacramento Sav. Bank v. Hynes, 50 Cal. 105; Hoester v. Sammelmann, 101 Mo. 619; of negligence, defendant's, Pittsburgh, C. & St. L. R. Co. v. Nelson, 51 Ind. 150; St. Louis & S. E. Ry. Co. v. Mathias, 50 id. 65 Smith v. Buttner, 90 Cal. 95; Pope v. Kansas City Cable Ry. Co., 99

Mo. 400; Le May v. Mo. Pac. Ry. Co., 105 Mo. 361; plaintiff's, Higgins v. Jeffersonville, etc. R. Co., 52 id. 110; Toledo, W. & W. Ry. Co. v. Harris, 49 id. 119; Hathaway v. Toledo, etc. Ry. Co., 46 id. 25; Jeffersonville, M. & R. Co. v. Bowen, 40 id. 545; Durgin v. Neal, 82 Cal. 595; Young v. Shickle, H. & H. Iron Co., 103 Mo. 324; Lafayette & I. R. Co. v. Huffman, 28 id. 287; Higley v. Gilmer, 3 Mont. 90; in slander and libel, Roberts v. Lovell, 38 Wis. 211; Hanuing v. Bassett, 12 Bush, 361; Harris v. Zanone, 93 Cal. 59; of damages, Argotsinger v. Vines, 82 N. Y. 308; Ferguson v. Hogan, 25 Minn. 135; Johnson v. C., R. I. & P. R. Co., 50 Iowa, 25; Comer v. Knowles, 17 Kan. 436; Indianapolis, B. & W. R. Co. v. Milligan, 50 Ind. 393; Prescott v. Grady, 91 Cal. 518; Brown v. Hannibal & St. J. R. Co., 99 Mo. 310; actions on express contracts, performance of conditions, Preston v. Roberts, 12 Bush, 570; Averbeck v. Hall, 14 id. 505; Andreas v. Holcombe, 22 Minn. 339; Livesey v. Omaha Hotel Co., 5 Neb.