Cave v. Gill , 59 S.C. 256 ( 1901 )

February 15, 1901. The opinion of the Court was delivered by The appeal herein is from an order, overruling a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The following is a copy of the complaint, to wit: "The complaint of the above named complainant respectfully shows that the defendant above named is indebted to the plaintiff for brick sold and delivered by the plaintiff to the defendant in the sum of $605.45, as appears by itemized account verified, hereunto annexed as a part of the complaint, and refuses to pay same; wherefore, plaintiff demands judgment against the defendant for $605.45." The following is the exhibit annexed to the complaint:

"Seiglingville, S.C. 2-9-1899. Mr. W.V. Gill. Bought of L.M. Cave:

1898.
Delivered Nov.    1.   To   23,800 brick
Delivered Nov.    1.   To    6,200 brick
Delivered Nov.    5.   To   30,500 brick
Delivered Nov.    9.   To   10,000 brick
Delivered Nov.   11.   To   10,000 brick
Delivered Nov.   11.   To   10,000 brick
November 17.     By cash                         $300.00
Delivered Nov.   17.   To   10,000 brick
Delivered Dec.    7.   To   10,000 brick
Delivered Dec.   14.   To   10,000 brick
Delivered Dec.   14.   To   10,000 brick
Delivered Dec.   19.   To   10,000 brick
Delivered Dec.   20.   To   10,000 brick
  1899.
Delivered Jan.   16.   To   10,768 brick
Delivered Jan.   18.   To    5,000 brick
Delivered Jan.   18.   To    6,000 brick
-------
172,468@$5.25         $905.45
300.00
-------
Balance due                                  $605.45

"South Carolina, Barnwell County. Personally appeared before me, L.M. Cave, and made oath that the above account is true and correct, and same has not been paid. L.M. Cave. Sworn to before me, this 10 February, 1899. J.C. Spann (L.S.), Notary Public."

The appellant assigns error on the part of his Honor, the presiding Judge, in overruling the demurrer: "For the reason that no contract or agreement is alleged and no statement of the value of the brick alleged to have been sold, is made. That the complaint alleges conclusions of law and the facts are not stated. That the complaint implies an action on contract and the annexed exhibit does not supply necessary allegations of facts omitted and not set out in the complaint."

The authorities are not uniform as to whether an instrument of writing annexed to the complaint and alleged to be part thereof can be considered in determining the sufficiency of the allegations of the complaint, when a demurrer is interposed. 6 Enc. of Pl. Pr., p. 299, and note. In 8 Am. Enc. of Pl. Pr., p. 740, the rule is thus stated: "In the absence of a statute, the annexing and filing of papers as exhibits to a pleading does not make them a part thereof, and they cannot be referred to for the purpose of supplying the omission of a material allegation or curing a fatal defect * * *" In the case of Burkett v. Griffith, 13 L.R.A. (Cal.), 707, the Court says: "Matters of substance must be alleged in direct terms and not by way of recital or reference, much less by exhibits merely attached to the pleading. Whatever is an essential element to a cause of action must be presented by a direct averment, and cannot be left to an inference to be drawn from the construction of a document attached to the complaint" — citing Los Angeles v.Signoret, 50 Cal., 298. The foregoing is a correct statement, in general terms, of the principle governing such cases. Resort, however, may be had to an exhibit for the purpose of making the allegations of the complaint definite and certain. It may be made "in aid of or in elucidation of the allegations of a pleading, but not to supply entirely the omission of allegations necessary to present a good cause of action." 8 Am. Enc. of Pl. Pr., p. 741, note. The exhibit will not, therefore, be considered in determining whether the allegations of the complaint were sufficient to constitute a cause of action.

The complaint substantially alleges that the plaintiff sold and delivered to the defendant a certain quantity of brick, and that the defendant refuses to pay the amount now due.

The prayer of the complaint is for $605.45, the alleged amount of the indebtedness. The alleged sale implies a consideration — Sires v. Sires, 43 S.C. 272 — and if it was not alleged with definiteness and certainty, the proper remedy was by a motion to that effect, but not by demurrer. The same may be said as to the number of brick delivered. The complaint, when considered apart from the exhibit, is indefinite and uncertain; but, as we have said, this does not render it subject to a demurrer. This defect, however, is cured when the complaint is construed in connection with the exhibit.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.