Stover v. Allen ( 1871 )

Turvey, J.,

delivered the opinion of the court.

A declaration is a statement on the part of the plaintiff of his cause of action, which must be made with a proper degree of certainty and particularity, and if predicated of an executed consideration, must» show that it arose at defendant’s request. The stating part of a declaration in the words, “plaintiffs in this suit complain of James Allen, the defendant in this suit, who has been summoned to answer the plaintiffs-in an action of assumpsit, to their damages, etc.; for that, whereas the defendant heretofore, to-wit, on the 8th of January, in the year of our Lord, 1868, by his certain account, for work and materials, rendered and proven, and now shown to the court, became liable to said plaintiffs in the sum of $178.18, including lawful interest,” is not good either as a common law or Code declaration. It does not allege by whom and for whom the work was done, nor by whom nor to whom the materials were furnished; there is no averment of an undertaking or promise 'nor of facts constituting an undertaking or promise, on the part of the defendant to pay for work or. materials; there is no averment of the fact, or of circumstances constituting the fact, that the materials were furnished, or the work done, at the instance or request of defendant. It conveys no reasonable certainty of meaning, nor does it, by a fair and natural construction, show a substantial cause of action. It does not appear whether the consideration is executed or executory; whether due upon demand, contingently or on a day certain; nor whether the contract is express or implied.

The judgment is reversed, the demurrer allowed, and the cause remanded, with leave to plaintiff to file a sufficient declaration.