§ 437. *543. Use Sanctioned also where Obligation is Express. Not only have the courts in this manner sanctioned the use of the common counts as appropriate modes of setting forth the plaintiff's cause of action; they have also held that another rule of the old practice is still retained by the codes. The rule thus declared to be in force is the following: When the plaintiff has entered into an express contract with the defendant, and has fully performed on his part, so that nothing remains unexecuted but the defendant's obligation to pay, he may if he please sue upon the defendant's implied promise to make such payment, rather than upon the express undertaking of the original contract; and to that end he may resort to a complaint or petition identical with the ancient common counts; except, as has already been shown, the averment of a promise may, and according to 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." But in Nebraska the practice of using the common counts has been condemned. The court of that State said in Penn Mutual Life Ins. Co. v. Conoughy (1898), 54 Neb. 123, 74 N. W. 422, "The Code of Civil Procedure (sec. 92) requires a pleader to state the facts which constitute the cause of action or defence in ordinary and concise language; and the practice of adding a common count in a pleading is one not contemplated by the code." Other courts have criticised the use of this form of pleading, but have nevertheless adhered to it. Thus the Supreme Court of California said, in Minor v. Baldridge (1898), 123 Cal. 187, 55 Cal. 783: "The mode of pleading is inconsist ent with our code, and it may be a matter of regret that it was ever tolerated, but the innovation is not so great if such complaint must fall before a special demurrer, which is like a motion to require a pleader to make his pleadings more definite, which practice prevails in some States." A similar view was expressed by the Supreme Court of Wisconsin in Thomson v. Town of Elton (1901), 109 Wis. 589, 85 N. W. 425: "At most the complaint was open to a motion to make more definite and certain. In a complaint for money had and received under the old system of pleading, the facts were pleaded according to their legal effect, and it has been repeatedly held that a statement of facts good at the common law in actions like this is sufficient under the code. . . . It is possible that the framers of the code did not contemplate such a result of their work when they said, 'The complaint shall contain a plain and concise statement of the facts constituting each cause of action, without unnecessary repetition;' but such construction was adopted by the courts in the State from which we took the code, before its adoption here, though at a time when there was a strong inclination to hold on to old forms and ingraft them on to the new system as far as possible. That was done, and it is believed the courts went beyond reason in some cases." And in Colorado the court held in Kimball v. Lyon (1893), 19 Colo. 266, 35 Pac. 44, that while pleading in the form of the common counts is not favored by the code, yet objection can be made thereto only by special demurrer, by motion for a copy of the account sued on or for a bill of particulars.] the better opinion should, be omitted. 1 Farron v. Sherwood, 17 N. Y. 227, 229; Hosley v. Black, 28 N. Y. 438; Hurst v. Litchfield, 39 N. Y. 377; Atkinson v. Collins, 9 Abb. Pr. 353; Evans v. Harris, 19 Barb. 416; Green v. Gilbert, 21 Wis. 395, an action to recover for the part performance of an express contract, the plaintiff having been prevented by sickness from completing; Carroll v. Paul's Ex., 16 Mo. 226; Brown v. Perry, 14 Ind. 32; Kerstetter v. Raymond, 10 Ind. 199; Stout v. St. Louis Tribune Co., 52 Mo. 342; Friermuth v. Friermuth, 46 Cal. 42; Raymond v. Hanford, 6 N. Y. S. C. 312; Fells v. Vestvali, 2 Keyes, 152; Ashton v. Shepherd, 120 Ind. 69. In Sussdorf v. Schmidt, 55 N. Y. 319, 324, the complaint alleged an agreed compensation for services; but, at the trial, the plaintiff was permitted to prove their value as upon a quantum meruit, and this was held no error, or at most an immaterial variance; but, per contra, in Davis v. Mason, 3 Ore. 154, it was held that in an action for services, the complaint stating an express contract to pay a stipulated sum, the plaintiff cannot prove and recover their value upon a quantum meruit. In Farron v. Sherwood, which is, perhaps, the leading case, the doctrine was thus announced by Strong J. (p. 229): “The case is therefore within the well-settled rule, that when there is a special agreement, and the plaintiff has performed on his part, the law raises a duty on the part of the defendant to pay the price agreed upon, and the plaintiff may count either upon this implied assumpsit, or on the express agreement. A new cause of action, upon such performance, arises from this legal duty in like manner as if the act done had been done upon a general request, without an express agreement. This rule is not affected by the code. The plaintiff might, as he has done, rest his action on the legal duty, and his complaint is adapted to and contains every necessary element of that cause of action." In Kerstetter v. Raymond, the Supreme Court enumerated the instances in which the general or common count was a proper means of suing upon an express contract between the parties, and declared that they were all retained by the codes. These instances are, (1) when the plaintiff has This doctrine is sup fully executed, and the time of payment is passed, the measure of damages being the stipulated price; (2) when the special contract has been altered or deviated from by common consent; (3) when the plaintiff has performed a part, and has been prevented from performing the whole by the act of the defendant, or by the act of the law; (4) when the plaintiff has not fully complied with the terms of the contract, but, professing to act under it, has done for or delivered to the other party something of value to him which he has accepted. This last doctrine is not universally accepted in the broad terms here stated; but it is the settled rule in Indiana. See Lomax v. Bailey, 7 Blackf. 599. [Held, in Jenney Electric Co. v. Branham (1896), 145 Ind. 314, 41 N. E. 448, that a recovery may be had upon the common counts notwithstanding the evidence shows a special contract. But in Duncan v. Gray (1899), 108 Ia. 599, 79 N. W. 362, no recovery was allowed where an implied promise was alleged and an express promise proved. So in Roche v. Baldwin (1902), 135 Cal. 522, 65 Pac. 459, where a complaint was drawn upon a quantum meruit, and evidence produced upon the trial established a contract whereby certain persons named were to fix the amount to be paid for the services rendered, it was held a fatal variance. The probata and allegata do not at all correspond. See also, to the same effect, McCormick v. Interstate, etc. Ry. Co. (1900), 154 Mo. 191, 55 S. W. 252; Burton v. Rosemary Co. (1903), 132 N. C. 17, 43 S. E. 480. In accord with Jenney Electric Co. v. Branham (supra), it was held in West v. Eley (1901), 39 Ore. 461, 65 Pac. 798, that where a complaint is founded upon a quantum meruit, the only effect of proving an express contract fixing the price is that the stipulated price becomes the quantum meruit in the case. It is not a question of variance, but only of the mode of proof of the allegations of the pleadings. The same rule was applied in Vanderbeek v. Francis (1903), 75 Conn. 467, 53 Atl. 1015; Hecla Gold Mining Co. v. Gisborn (1899), 21 Utah, 68, 59 Pac. 518; Roberts v. Leak (1899), 108 Ga. 806, 33 S. E. 995. Where an express contract is alleged in ported by numerous decisions in various States, and it seems to be regarded as still operative in all the circumstances to which it was applicable under the former system. § 438. *544. Criticism of Doctrine. In the face of this overwhelming array of authority, it may seem almost presumptuous even to suggest a doubt as to the correctness of the conclusions that have been reached with so much unanimity. I cannot, however, consistently with my very strong convictions, refrain from expressing the opinion that, in all these rulings concerning the use of the common counts, the courts have overlooked the fundamental conception of the reformed pleading, and have abandoned its essential principles. This position of inevitable opposition was clearly, although unintentionally, described by one of the judges in language already quoted, when he says, "We are inclined to sanction the latter view, and to hold that the facts which, in the judgment of the law, create the indebtedness or liability, need not be set forth in the complaint." Now, the "facts which create the liability" are the "facts constituting the cause of action" which the codes expressly require to be alleged; the two expressions are synonymous; and the direct antagonism between what the court says need not be done, and what the statute says must be done, is patent. But the objection to the doctrine of these decisions does not chiefly rest upon such verbal criticism; it is involved in the very nature of the new theory when contrasted with the old methods. In every species of the common count, the averments, by means of certain prescribed formulas, presented what the pleader conceived to be the legal effect and operation of the facts instead of the facts themselves, and the most important of them was always a pure conclusion of law. The count for money had and received well illustrates the truth of this proposition. In the allegation that "the defendant was indebted to the plaintiff for money had and received by him to the plaintiff's use," the distinctive element the pleading, and the proof shows only an implied contract, no recovery can be had: Pearson v. Switzer (1898), 98 Wis. 397, 74 N. W. 214; Walker v. Irwin (1895), 94 Ia. 448, 62 N. W. 785; Harrison v. Pusteoska (1896), 97 Ia. 166, 66 N. W. 93; Birlant v. Cleckley (1896), 48 S. C. 298, 26 S. E. 600; Newton's Executor v. Field (1895), 98 Ky. 186, 32 S. W. 623; Price v. Price's Executor (1897), 101 Ky. 28, 39 S. W. 429; Huston v. Tyler (1897), 140 Mo. 252, 36 S. W. 654; Maddox v. Wagner (1900), 111 Ga. 146, 36 S. E. 609. Contra, Burgess v. Helm (1898), 24 Nev. 242, 51 Pac. 1025; Livingstone v. Wagner, 23 Nev. 53, 42 Pac. 290.] was the phrase "money had and received to the plaintiff's use." This technical expression was not the statement of a fact, in the sense in which that word is used by the codes; if not strictly a pure conclusion of law, it was at most a symbol to which a certain peculiar meaning had been given. The circumstances under which one person could be liable to another for money had and received were very numerous, embracing contracts express or implied, and even torts and frauds. The mere averment that the defendant was indebted for money had and received admitted any of these circumstances in its support, but it did not disclose nor even suggest the real nature of the liability, the actual cause of action upon which the plaintiff relied. (The reformed theory of pleading was expressly designed to abrogate forever this general mode of averment, which concealed rather than displayed the true cause of action; it requires the facts to be stated, the facts as they exist or occurred, leaving the law to be determined and applied by the court. The same is true of the common count in every one of its phases. A careful analysis would show that the important and distinctive averments were either naked conclusions of law, or the legal effect and operation of the facts expressed in technical formulas to which a particular meaning had been attached, and which were equally applicable to innumerable different causes of action. The rule which permitted the general count in assumpsit to be sometimes used in an action. upon an express contract was even more arbitrary and technical, and was wholly based upon fictitious notions. The conception of a second implied promise resulting from the duty to perform the original express promise has no foundation whatever in the law of contract, but was invented, with great subtlety, in order to furnish the ground for a resort to general assumpsit instead of special assumpsit in a certain class of cases. All the reasons in its support were swept away by the legislation which abolished the distinctions between the forms of action, since it was in such distinctions alone that those reasons had even the semblance of an existence. My space will not permit this discussion to be pursued any farther, although much more might be added to the foregoing suggestions. If the principles of pleading heretofore developed in the text are true expressions of the reformed theory, the legislature certainly intended that the facts constituting each cause of action should be alleged as they actually happened, not by means of any technical formulas, but in the ordinary language of narrative; and it is, as it appears to me, equally certain [that the use of the common counts as complaints or petitions is a violation of these fundamental principles. § 439. 545. Further Rules of Pleading to be considered. Outline of Discussion. From the few general principles which thus constitute the simple foundation of the reformed pleading, there result as corollaries certain subordinate doctrines and practical rules, to the development and illustration of which the remaining portion of the present section will be devoted. The immediate object of these special rules is to enforce in complaints or petitions and answers a conformity with the essential principles upon which the system is based, and at the same time to procure a decision of judicial controversies upon their merits, and not upon any mere technical requirements as to form and mode. They relate to the practical methods which must be pursued in setting forth the causes of action and the defences; and the particular subjects with which they deal are (1) insufficient, incomplete, or imperfect allegations, (2) immaterial and redundant allegations, (3) the doctrine that the cause of action or the defence proved must correspond with the one alleged. Connected with and subsidiary to these topics are the remedies provided for each, and particularly that of amendment, which the codes expressly authorize with the utmost freedom, and also the power of electing between the two modes of setting forth the same cause of action under certain circumstances either as ex contractu or as ex delicto. Preliminary, however, to the discussion thus outlined, I shall state and very briefly explain a principle which will necessarily affect its whole course, and largely determine its results, the principle of construction as applied to the pleadings themselves. § 440. *546. Strict Construction of Pleadings Superseded by Liberal Construction. It was a rule of the common law firmly established and constantly acted upon, that, in examining and deciding all objections involving either form or substance, every pleading was to be construed strongly against the pleader; nothing could be presumed in its favor; nothing could be added, or inferred, or supplied by implication, in order to sustain its sufficiency. This harsh doctrine, unnecessary and illogical in its original conception, and often pushed to extremes that were |