Rice v. Peters ( 1908 )

Kellogg, J. (concurring):

The complaint in substance sets forth three causes of action: (1) To recover the plaintiff’s half of the farm produce which the defendant’s, testator had sold; (2) to recover his half of the profits on some horse transactions, which profits defendant’s testator had received; (3) to recover for the value of various services performed by the plaintiff. All the necessary facts are alleged to show a cause of action for each of these matters, éxcept the amount of the plaintiff’s damage is.not definitely alleged, but in place thereof is the genei’al allegation that they amount to several hundred dollars and the plaintiff has no account of them; that by agreement between them, the defendant’s testator had kept such an account, and then tlie plaintiff asks to have the defendant account for the various matters and that he have judgment for the balance found his due.

Por the purpose of reviewing the correctness of the judgment, it is not necessary to decide whether the complaint sets forth a cause of action for equitable or legal relief; it would seem to be a reproach to our judicial system if upon the facts stated the plaintiff is not entitled to some relief. No motion to make the complaint more definite and certain was made, but at the trial, for the first time, objection was raised to the complaint, and it was dismissed for insufficiency, on the apparent assumption that equitable relief alone was sought, and that the matters set forth did not justify such relief.

Upon the motion as made, the question Was not for the court to determine whether the relief desired was legal or equitable, but whether, upon the conceded facts, the plaintiff was entitled to any relief. I am inclined to think that the allegations of the complaint entitled the plaintiff to equitable relief. If not, he was clearly entitled to recover damages.

If-we treat the action as á legal one, the complaint is clearly subject to a motion to make it more definite and certain, and to have the causes of action stated and numbered, but such objections were waived. Upon a motion to make the complaint more definite and certain, the excuses set up in the complaint for not stating more . particularly the amount of damages would come before the court for consideration in determining whether the plaintiff may be compelled to state them more specifically. Without discussing the technical question whether the complaint is one at law or in' equity, it is apparent, taking the allegations as true, that the plaintiff is entitled to some relief.

The judgment, therefore, should be reversed;

Judgment reversed and new trial granted, with costs to appellant to abide event.