McDonald v. Pend Oreille Mines & Metals Co. , 189 Wash. 389 ( 1937 )

As against demurrer, a complaint is good if it states a cause of action on any theory. Isaacs v. Holland, 4 Wn. 54,29 P. 976; Damon v. Leque, 14 Wn. 253, 44 P. 261; Peterson v.Pantheon Lumber Co., 62 Wn. 189, 113 P. 562; Harding v.Ostrander R. Timber Co., 64 Wn. 224, 116 P. 635; WhiteBros. Crum Co. v. Watson, 64 Wn. 666, 117 P. 497, 44 L.R.A. (N.S.) 254; Hughes v. McVay, 113 Wn. 333,194 P. 565, 14 A.L.R. 681; Greenwood v. International Harvester Co.,122 Wn. 603, 211 P. 727; Blanchard v. Golden Age BrewingCo., 188 Wn. 396, 63 P.2d 397; Eden v. Northwest BrewingCo., 188 Wn. 701, 63 P.2d 418. The two cases last cited afford a striking example of the application of the rule. The complaints in the two cases were in all essential respects identical. In the Eden case, the sufficiency of the complaint was directly involved. The court disposed of the case summarily with a per curiam opinion resting the decision on theBlanchard case. Of the complaint, the court in the Blanchard case said:

"The complaint was drawn, in large part, upon the theory that the action of the defendant brewing companies and the teamsters' union was in violation of the brewers' code, above mentioned, in that the brewery workers were denied the right to select their own representatives and through them to deal with their employers. In addition to that, however, the complaint alleged that, although the relations of the brewery workers with their employers had been harmonious in every respect, the teamsters' union, by threats of strikes and boycotts, and for the purpose of procuring the discharge of the brewery workers, had coerced the defendant brewing companies into demanding that the brewery workers should join the teamsters' union or else suffer the loss of their jobs by being discharged; and also alleged that, unless restrained, the demands of the teamsters' union would, by the same means, be carried into effect. It was further alleged that the brewing trade was the sole means of livelihood of the brewery workers and that it was the intention of the teamsters' union to blacklist them and prevent them from securing employment in their trade anywhere in Spokane."

In other words, notwithstanding a casual reading of the complaint would lead one to believe the action was wholly predicated on the National Industrial Recovery Act, the court found sufficient allegations to sustain a bill in equity for injunctive relief.

If the rule were applied with equal liberality in the instant case, there could not be any doubt as to the sufficiency of the complaint. For, wholly apart from the allegations with respect to the President's Reemployment Agreement, the complaint alleges that respondent entered into an oral contract with appellant and his assignors with respect to hours of employment and wages to be paid, and that pursuant to such agreement he and his assignors carried on their labors. The majority dismiss this phase of the complaint in the following language:

"Nor can we agree with counsel for appellant that the complaint states a cause of action upon oral promises by respondent to appellant and his assignors that respondent would pay them the same wages per day and per week that they had received for several weeks prior to August 1, 1933, notwithstanding reduction in hours of employment agreed to in the President's Re-employment Agreement with the respondent.

"The difficulty confronting appellant is the fact that the complaint does not allege the breach of any oral promise. The only agreement claimed to have been extended was the Reemployment Agreement, and the only breach of which appellant complains is breach of ``said agreement and its extension.'

"The alleged oral promise, in so far as it might otherwise have tended to bind respondent, is invalid by reason of coercion. After all, it is the same undertaking as that alleged to be embodied in the President's Reemployment Agreement."

Plainly, this language draws all inferences against the pleading and none in favor of it. The sufficiency of the complaint should be measured by the rule as stated in Isaacs v.Holland, supra:

"The averments of this pleading are vague and indefinite, and it is defective in other respects; yet, when bolstered by the rule of liberal construction commanded by the code, we think we discern a cause of action. A suitor is no longer to be turned out of court, if by making all reasonable intendments in his favor enough can be seized hold of in his pleadings to show that he has rights which ought to be enforced. He may be required on motion to conform his statement to the rules of good pleading, and if he refuse, may be turned out of court; but as against a demurrer, the office of which is to raise a substantial issue on the law of the case, and not on the law of practice and pleading, evidentiary facts, and even inferences from averments amounting to mere conclusions of law, will be considered in his favor."

The following sentence from the above quotation from the majority opinion is of more than passing interest: "The alleged oral promise, in so far as it might otherwise have tended to bind respondent, is invalid by reason of coercion." What coercion? Certainly not the fear of penalties provided for in the National Industrial Recovery Act. They could not be imposed for the breach of private contracts. If this complaint were here setting up the oral contract alone, without reference to the President's Reemployment Agreement, it could not possibly be said to be coercive. The allegations with respect to this oral contract are to be considered without reference to the allegations concerning the President's Reemployment Agreement. The latter should be treated as mere surplusage — as though they were not contained in the complaint at all. Eden v. Northwest Brewing Co., supra;Isaacs v. Holland, supra.

Furthermore, duress, like fraud, is never presumed. One seeking to escape the consequences of his contract by reason of duress has the burden of proving it by evidence clear and satisfactory. Cornwall v. Anderson, 85 Wn. 369, 148 P. 1;Bair v. Spokane Savings Bank, 186 Wn. 472, 58 P.2d 819.

The majority also say: "The difficulty confronting appellant is the fact that the complaint does not allege the breach of any oral promise." Again the inference is against the pleading, while the rule of construction, as stated in White Bros. Crum Co. v.Watson, supra, is:

"It will be noted that there is no direct allegation that the point of diversion, either as originally located or as now proposed, is upon the respondents' land. This is urged as one reason that the demurrer was properly sustained. The inference, however, from a reading of the whole amended complaint, is that both of these points and the site of the proposed dam are upon respondents' land. In the absence of a motion to make the amended complaint more specific in these particulars, the demurrer should not have been sustained on this ground."

The very bringing of the action to recover wages is sufficient to justify an inference of a breach of the contract set up in the complaint.

I dissent.