Grant v. Grant

The plaintiff, now twenty-three years of age, when about four, went to reside with William Grant of Torrington, and his wife, in consequence of a verbal promise made by Mr. Grant to her parents, that if they would let him adopt the child as his own, he would take her with him to his home, and as he and his wife had no children of their own, they would educate and maintain her; that he had some property, and when he died the child should have it, what there was left of it, just the same as if she were his own daughter. Immediately after she went to reside in the family Mr. Grant and his wife commenced calling her "Tiny Grant," by which name she has ever since continued to be known and called. Mr. and Mrs. Grant were always kind and affectionate towards her, treated her as their own daughter, clothed, maintained and educated her in the district school of the town, and did everything for her which kind and affectionate parents could or would do for their own daughter.

On the other hand, she was kind and affectionate towards them and did everything for them which a kind and affectionate daughter could or would do for her parents. After she arrived at a suitable age, she assisted Mrs. Grant about the house, washed the dishes, made the beds, did sweeping and house cleaning, according to her years, and ran errands as required. This she continued to do down to the date of Mr. Grant's death. On three or four occasions he was sick, and suffered on each of these occasions for several weeks. On these occasions she waited upon him, nursed and cared for him, and he refused to let any one else attend upon him. He stated to her that she would be well rewarded for what she had done for him and for his wife. "You remain with us, Tiny," said he, "and after I am gone, you will be well provided for; what I have left shall belong to you." These remarks and others like them, he made a great many times to the plaintiff, to his wife, and to a number of his neighbors. In consequence of these promises made to her parents and to herself, the plaintiff was induced to remain with Mr. and Mrs. Grant as she did.

Mr. Grant died March 4th, 1893, leaving no children of his own, but a wife and sister survived him. He died intestate, having never adopted the plaintiff in accordance with the laws of this State. She had never requested such adoption, because she did not know or understand that any legal formalities were required, and expected that Mr. Grant would make the promised provision for her by will. His property at the time of his death consisted of a little over twelve thousand dollars in all; of which about twelve hundred dollars was real estate.

The above facts, found by a committee are, though in greater detail, in substantial accordance with, and affirmance of, the allegations of the plaintiff's complaint against Mrs. Grant (the widow) and as administratrix of the decedent's estate. Upon such recited facts, the claim of the plaintiff, as quoted from the brief in her behalf, was: — "If William Grant had made a will, devising and bequeathing all of his estate to this plaintiff, his widow would first be entitled to one half of the personal property, and to the use of one third of the real estate." The plaintiff asks for a decree that the other half of the personal property shall be paid over to her; and that the title to the real estate, subject to the widow's dower, shall be vested in her, or that a decree will be passed giving her an equivalent for these.

The committee, in addition to the fact a above recited, also made the following finding: — "The plaintiff also asks me to find the value of her services to Mr. Grant while she remained in his family, for the purpose of obtaining judgment for the amount, in case she is not entitled to the equitable relief prayed for. On this subject I find it impossible to place a pecuniary value on the plaintiff's affection and tenderness for Mr. and Mrs. Grant. I find, however, that for the seven years next preceding Mr. Grant's death, on March 4th, 1893, her services to Mr. Grant were and are reasonably worth, as a mere servant, twelve dollars per month, and that interest should be computed thereon, if the above facts will authorize it; and if it is legally and equitably right so to do, I find that this interest ought to be compounded annually."

From the foregoing statement it is manifest that the reservation of this case for advice, made by the Superior Court, presents for our consideration two questions:First, is the plaintiff, upon the facts found, entitled to the specific equitable relief prayed for? and,second, if not, is she entitled to recover damages in this action, and upon this complaint?

It seems to us that there are conclusive reasons why specific performance, as prayed for, cannot be granted. The alleged contract was wholly by parol, the consideration indivisible; it provided in effect that the plaintiff, upon the death of the defendant's intestate, should succeed to a child's share in all the property of said intestate; and that such property at his death, consisted of real, as well as personal estate. The contract, therefore, was entire. It applied equally to every part of the estate. It concerned an interest in lands, and was within the statute of frauds.Shahan, Exr., et al. v. Swan,48 Ohio St., 25; Donahue's Appeal, 62 Conn., 370, 372;Myers v. Schemp et al, 67 Ill., 469;Pond v. Sheean et al., 132 Ill., 312, 323;Clark v. Davidson, 53 Wis., 317;Ellis v. Gary, Admr., 74 Wis., 176;Gould v. Mansfield et al., 103 Mass., 408.

In some of the cases, above cited, the alleged agreement, or promise, expressly called for succession to both real and personal property; and in one of them it appeared that real property was owned at the date of the contract. In other cases the promise did not so expressly embrace both, but was in general language as in the case before us; nor did it appear whether any real estate was owned at the date of the contract. Neither such express language, or such ownership has however, by any of the courts been regarded as controlling considerations; nor ought they to be. The mischief which the statute was intended to remedy — the setting up parol land titles — would occur equally in either case. And in every case, in which the effect of the contract, if capable of enforcement, would be a transfer of land, and therefore in every case where such a result might at the time the contract was made, have been contemplated as its possible effect and afterwards found to be its necessary one, if the contract is enforced, such contract falls within the operation of the statute.

But the plaintiff, in the brief presented in her behalf, conceding that the oral contract was within the provisions of the statute of frauds, contends that the finding shows such performance upon her part as relieves the case from the operation of the statute. The adjudications upon the subject of what constitutes sufficient part performance of an oral contract to take it out of the statute are almost numberless. Though not in harmony, they appear to support one or the other of two rules; the stricter, requiring the acts of part performance to be referable to the contract set up, and to no other one, and the more liberal holding the acts sufficient if they are such as clearly refer to some contract in relation to the subject matter in dispute, the terms of which may then be established by parol. We have had occasion very recently to fully examine the subject, and have adopted the latter and more liberal rule.Andrew v. Babcock, 63 Conn., 109, 122.

But, applying the rule, do the acts stated clearly indicate a contract in relation to the subject matter in dispute? We think not. On this point we cannot do better than to quote and adopt the language of the court in the case before cited, of Shahan, Exr., et al. v. Swan, p. 39, where, in reference to very similar facts, the court said: "Acts of this character are not usually the offspring of contractual relations. Would the ordinary observer infer from them any contract whatever? Would they not, rather, be attributed to higher motives?" * * * "Whether these acts of alleged part performance be taken singly or collectively, they do not indicate that they were done in performance of any contract or agreement respecting property rights of any kind, but rather were manifestations of a benevolent and affectionate disposition on the part of a childless couple towards a gentle and affectionate child whose fate was placed in their keeping." So, also, in the case of Pond v. Sheean et al.,supra, a person having no children of his own, took an infant daughter of a relative of his wife, to raise as a member of his family, and promised orally, with his wife's consent, that if the child's father would permit her to become a member of his family and assume the name of her adopter, he would, on his death and that of his wife, give the child all the property he might own. The contract was fully performed by the child and her father. But the court held that a court of equity could not decree a specific performance of the parol agreement, saying that the case was clearly within the statute of frauds; that the contract was entire, and the plaintiff having never been put into possession of the real estate, the acts of part performance were not sufficient to relieve the case from the statute. So, also, in the Wisconsin case of Ellis v. Cary,admr., supra, where the alleged agreement of the intestate was that if Mrs. Ellis, the plaintiff, his step-daughter, would keep the house of the deceased and take care of him during the residue of his life, he would devise and bequeath to her all his real and personal property, as compensation for such services. The plaintiff not only fully performed, but after the death of the testator she remained in possession of his real estate. But it was said that she was not put into possession under the void agreement, and that such possession had no necessary reference thereto; and it was held that the case was not relieved from the operation of the statute. But a further reason why such a contract as that in question cannot be specifically enforced, is that which is stated at great length in the opinion of the court inWallace v. Rappleye, et al., 103 Ill., 229. This was an attempt to establish a verbal contract, alleged to have been made by a putative father, to make his illegitimate child an heir. The court said: first, that "such claims are always dangerous, and when they rest on parol evidence they should be strictly scanned, especially when an attempt is made, under cover of a parol contract, to effect a distribution different from that which the law makes." The court also held that a specific performance of a verbal contract affecting real estate, will not be decreed except upon due and conclusive proof of its existence and terms, and that the contract must be certain, equal and fair, founded upon a valuable, as distinguished from a merely good or moral consideration; and that when so proven, it is not a matter of right, but of sound discretion; — general equitable principles concerning the correctness of which there can be no question. The court in the same case also says: — "The only significance of a contract to make one an heir is in securing a right to property. But what is the amount of property involved in such a contract? How much intestate estate will be left to be inherited? * * * The contract would be uncertain as to the amount of property reached by it." Again, inWoods v. Evans, 113 Ill., 186, it was held, that a contract by one having at the time an estate of the value of $20,000, and a wife living but no children, to take, maintain and educate an orphan girl eleven years old, and, for her services until she should attain the age of eighteen years, to leave and give to her at his death a child's part of his estate, was not based upon a sufficiently adequate consideration; that it was not certain as to what was intended, and not fair and just in all its provisions; that it was too uncertain as to the amount of property to be reached by it, and that it should not be specifically enforced against the heirs of the party making the same. See also, the cases of Wall's Appeal, 111 Pa. St., 460; Alderson v. Maddison, L. R. 8 Ohio App. C. 467.

The case of Wallace, Adm., v. Long,Guardian, 105 Ind., 522, unlike the cases before cited, was an action at law, being a complaint against an administrator, and based upon a claim against the estate. The facts alleged were, in substance, that a childless husband and wife, in consideration, that a young girl should live with them until the death of both, in all respects as their own child, and render such service as she was capable of doing, orally agreed to make her their heir, and at their death, or at the death of the survivor, to will her the entire estate of which they were possessed, which in fact consisted, at the death of the survivor, of real estate, and also of personal estate exceeding fifty dollars in value. The claim was to recover the value of the estate, estimated at six thousand dollars. The case was tried to a jury, who returned a verdict for said sum. On appeal, the judgment upon such verdict was reversed, the court holding:first, that the agreement was within the statute of frauds; second, that performance on the part of the girl did not take it out of the statute; third, that where services have been performed in consideration of property to be conveyed, if the contract is not enforceable by reason of the statute of frauds, the action is not on the special contract for damages, but on a quantummeruit to recover the value of the services;fourth, in such a case the value of the services performed, and not the value of the property agreed to be conveyed, is the measure of damages; fifth, in estimating the value of the services regard should be paid to the situation of the parties, and the nature of the services required or performed. The court, in the opinion, fully considers all these propositions. We need not add further to what has already been said in reference to the first two, but will quote somewhat in regard to the others. "When the title to property, either real or personal, is to be acquired by purchase, the statute of frauds will operate upon and affect the contract in precisely the same manner, whether the consideration for the purchase is to be paid in services, money, or anything else. In either case, such a contract, being in parol and entirely executory, cannot be enforced by either party, and it may be doubted whether a contract which is within the statute so as to be incapable of specific enforcement, has sufficient validity to support an action for damages by either party, unless the contract was induced under, or its violation is involved in, some special circumstances of fraud or bad faith.Barickman v. Kuykendall, 6 Blackf. (Ind.), 21; Bollard v. Bond, 32 Vt., 355;McCracken v. McCracken, 88 N. C., 272;Bender v. Bender, 37 Pa. St., 419. The most that can be recovered in such a case is the value of what may have been paid or performed by one party in reliance upon such a contract, when the other refuses to perform. Reed Stat. of Frauds, sections 737, 761-2; Day v. Wilson,83 Ind., 463 (43 Am. Rep., 76).

"Where, therefore, services have been performed, or money paid, in consideration of property to be conveyed, if the contract is not enforceable by reason of the statute of frauds, the action is not on the special contract, but, in the case of services performed, the action is on aquantum meruit to recover the value of the services. Ham v. Goodrich, 37 N. H., 185;Emery v. Smith, 46 N. H., 151:Leslie v. Smith, 32 Mich., 64;Seymour v. Bennett, 14 Mass., 266; 2 Reed, Stat. of Frauds, sections 622, 623, and cases cited in notes; 2 Sutherland on Damages, 453. In such a case, the value of the services performed, and not the value of the property agreed to be conveyed, is the measure of damages." It was also said, referring to the agreement: — "It does, however, serve to rebut any presumption which otherwise might have obtained, that the services rendered were to have been gratuitously performed, or that they were performed under the mere expectancy that the intestate would leave the plaintiff's ward a legacy. She is, therefore, entitled to recover the value of her services.Jacobson v. Executors, etc., 3 Johns. 199;Robinson v. Raynor, 28 N. Y., 494;Campbell v. Campbell, 65 Barb., 639;Reynolds v. Robinson, 64 N. Y., 589;Emery v. Smith 46 N. H., 151;Sutton v. Rowley, 44 Mich., 112;Welch v. Lawson, 32 Miss., 170;Bender v. Bender, 37 Pa. St., 419;Alderson v. Maddison, L. R. 8 Ohio App. Cases, 457 (35 Moak's Eng. Rep. 790); Clark v. Davidson,53 Wis., 317; Howard v. Brower,37 Ohio St., 402; Wood, Frauds, sections 221, 235. Many other cases might be cited which support and illustrate the conclusions reached, but those referred to are deemed sufficient. The value of the services is to be determined without any reference to the value of the estate of the intestate. But, in estimating the value of the services, regard should be paid to the situation of the parties, the nature of the service required, or performed. Allowance should be made, too, for the fact that under the circumstances, the presence and society of the plaintiff's ward may have been of sufficient value to compensate for her education, clothing and support."

We have quoted from the above case, which has been expressly approved in the more recent and similar case ofEllis v. Cary, Admr., supra, (see, also, Am. St. Rep., vol. 17, p. 125,) so much at length, because the language used appears to us to present with great clearness and force, and supported by an abundant reference to authority, principles applicable to the questions under consideration, which have been already recognized in the decisions of this court; and to be in full accord with such decisions. Watertown Eccl. Soc'y Appeal,46 Conn., 230: Starkey's Appeal, 61 Conn., 199;Donahue's Appeal, 62 Conn., 370.

But perhaps these principles, though apparent from the opinions in the cases just cited, are most clearly stated inWainwright v. Talcott, 60 Conn., 43. That was an action to recover for money expended by the plaintiff in improvements on real estate owned in common by the plaintiff's wife and the defendant's testator, made under a promise of the latter that his interest in the property should be devised to the plaintiff's wife, and that she should have the benefit of the improvements. As there declared, the rule is this: Damages, in such a case, are not recoverable for the breach of an agreement, impossible to enforce, and unnecessary to allege; but on the ground of what, for want of a better name, is called a constructive fraud, which would be consummated unless the plaintiff was allowed to prove what induced her to alter her situation, if she did alter it, for the worse, and could upon such proof obtain fair compensation for the injury thereby occasioned to her. "The cause of action in such cases is not the refusal to perform a contract, or to keep a promise or engagement upon which another relied, but it is the consequent unjust infliction of loss or injury upon one party, and the consequent benefit and advantage resulting to the other, from the violation or breach of a faith and confidence which, under the circumstances, a court of equity deems to have been rightly reposed in him."

A claim for such damages is properly presentable to an administrator, or to commissioners. Under the common law system of pleading, the action of indebitatusassumpsil would have been an appropriate form of remedy for recovery. The damages are capable of computation, since they are to be measured by the pecuniary loss and injury on the one side, and the pecuniary benefit and advantage on the other. Such a claim was presented in Starkey's Appeal,supra. And though one of the forms of double presentation there employed might seem to be a claim for damages for breach of contract to leave all the property and estate of the intestate to the plaintiff, by will, this court, in its opinion says that it was "evident that the commissioners considered that there was but one claim for six thousand dollars, founded on personal services, and that they allowed." And in reference to such claim, it was, by the court, made a question whether evidence as to the value of the estate was admissible, and it was said: "That seems to be more remote than the other testimony; but perhaps in connection with the testimony of Mrs. Rice, it was admissible, not as giving a rule of damages, but as having some tendency to show Mr. Brooks's appreciation of her services." And, finally, in that case, upon the question of the true rule of damages, the charge to the jury was approved, in which it was stated that: "When services are rendered by one person to another in pursuance of a mutual understanding and agreement between the parties that compensation for them should be made by will, and the party receiving the services dies without making the expected compensation, the party rendering the services is entitled to compensation out of the estate of the deceased as a creditor for the value of such services."

But can there be a recovery of damages in this action? The complaint as it stands, is not adapted to such recovery. It contains no statement of any resulting loss or damage to the plaintiff, and none of services rendered, except that she nursed "the intestate and his wife, in their sickness, dutiful as a daughter;" and no bill of particulars was filed. Since, however, the case comes before us on reservation, if it appeared probable the plaintiff was entitled to such relief, we might suggest proper amendment, pursuant to the provisions of the rules of practice. 58 Conn., 568-9, §§ 2, 3;Erichson v. Beach, 40 Conn., 283;Haussman v. Burnham, 59 Conn., 117, 139;Logiodice v. Gannon, 60 Conn., 81, 85. But to this course, if advised, it is probable an insurmountable obstacle would exist. There is nothing in the complaint which indicates that any claim against the estate has ever been presented to the administratrix, as required by General Statutes, § 581. And unless the fact that it has been presented exists, and could therefore be stated, any amendment would fail to make a valid complaint, adapted to the recovery of a claim. Such presentation is essential, and a condition precedent to legal recovery against a solvent estate. The object of the statute making it requisite, is apparent. It is "to enable the administrator to perform his duties. * * * In the first instance the administrator must pass upon all claims against such estates. He is not presumed to know what they are, and in a great majority of cases he cannot know, until they are presented to him by the creditors." Pike v. Thorp, 44 Conn., 453. The law, therefore, has made it as essential to a claimant's right of recovery of a legal claim, in a higher court, against a solvent estate, that it should be first presented to the executor or administrator, and an opportunity given him to examine and pass upon it, and to allow or disallow it, as it is that such a claim against an estate represented insolvent, should be presented to the commissioners upon such estate, for their action.

There is another statute, General Statutes, § 583, which requires suit to be brought by a creditor of an estate, against an administrator, within four months after written notice of the disallowance of a claim. Otherwise it is barred. Both of these provisions have long been in existence in this state. Doubtless, prior to the passage of the Practice Act of 1879, a custom had grown up, to some extent, of treating both alike, as matters the failure to comply with which, should be set up in defense, under the general issue with notice. But there is a radical difference between the two provisions, the last being simply a statute of limitations. The practical effect of this difference was clearly recognized in the rules and forms under the practice act. See P. A. Book, page 16, sec. 6, (58 Conn. 566, 567) which requires statutes of limitations to be specially pleaded; and same book, p. 72, Form 106, where a complaint against an administrator which contains (par. 10) the allegation of presentation of the claim to the administrator, and his refusal to pay the same.

But the question before us is not strictly one of pleading, or whether a complaint without such allegation of presentation would be good upon demurrer. The facts have been found by a committee, apparently with the utmost fullness; for certainly the finding contains considerable that is unimportant and immaterial. But there is no finding of presentation of any claim to the administratrix. The precise question, therefore, arises, which was presented and passed upon by this court in Brown Bros. v.Brown, 56 Conn. 249, where an appeal having been taken in consequence of the refusal of the court below to set aside a nonsuit granted, the sole question presented and decided, was whether the plaintiff in its testimony in chief had produced sufficient evidence of presentation to constitute a primâ facie case. The distinction between the two statutes to which we have referred is clearly stated in the opinion, p. 2.52, the court saying: "The question whether the suit was brought within four months after notice of the rejection of the claim by the executors is one that does not arise in the case as it stands. It is wholly a matter of defense, and constituted no part of the plaintiff's case. We do not think it proper at this stage of the case to give the question any consideration."

But to all the foregoing, it may be added, that all the allegations of the complaint, and the relief prayed for therein, tend strongly in opposition to the idea of any presentation of any claim against the estate to the administratrix. The prayer of the plaintiff, upon the facts stated and found, as before recited, is: — "1. That you will pass a decree that when said estate is settled, and the distributive share to be set to the widow is ascertained, the remainder of said estate shall be paid over to this plaintiff by the administratrix 2. In other words, the plaintiff asks for a decree that the promises of the said William Grant shall be specifically performed, or rather, that the plaintiff shall be placed in as good condition as she would have been in if said promises had been performed. 3. In the event that the plaintiff shall not be entitled to the equitable decree prayed for, then she claims a judgment for damages for $5,000." Now it is clear that the first two of these paragraphs neither contain any demand for legal relief or for any claim against the estate upon which the administratrix could pass, allowing or disallowing the same; or upon which if, under the provisions of General Statutes, § 585, the administratrix, after the time limited for presenting claims, had procured the appointment of commissioners, such commissioners, although vested with powers both legal and equitable, could have decided. For even their equitable powers are limited to cases where the claims are those of creditors of the estate, entitled to payment out of the assets, which the plaintiff did not claim to be; but entitled to receive its remaining assets, after the payment of the debts and charges, alleged in the complaint not to exceed one thousand dollars; the expense of settling the estate, alleged not to exceed two hundred dollars; and the dower and distributive share of the widow. The powers which even commissioners could exercise must be such as the Superior Court, on appeal, could also exercise, through the instrumentality of a trial by jury — such a case as that presented in Watertown Eccl.Soc'y Appeal, supra; Starkey's Appeal, supra; and inCorr's Appeal, 62 Conn., 403, and cases cited.

And so far as the claim in the third paragraph of the demand for relief is concerned, it must be noticed, first, that it is not asked for absolutely, but only in the event that the plaintiff is held not entitled to what she has demanded absolutely. So that it can scarce be imagined that such alternative claim could have been presented, as the absolute one, to the administratrix. And, second, such claim for damages must be understood as being the equitable relief prayed for, in another form, which in the opinion of the pleader might perhaps be held less objectionable (though we do not share such opinion) than the former; as, for instance, the conversion of the entire estate into money, subject to the widow's dower in the realty, and the payment over to the plaintiff of the residue, after discharge of the debts, charges, expenses, and setting out of the widow's portion, as aforesaid. Even if it be imagined that relief by way of damages for breach of contract was intended, it would amount to precisely the same thing. For, waiving the consideration already advanced, based upon the clear provisions of the statute of frauds, which would make such a contract of no legal validity, (Donahue's Appeal, supra,) it would be impossible to fix the amount of such damages, prior to the final completion of the settlement of the estate; and no jury could legitimately determine such amount, and no court, through the form of a judgment at law, as for a liquidated and definite sum, could giant the plaintiff such relief. It would only be through the more flexible and adaptable remedies pertaining to the equitable jurisdiction that the result sought could be attained. That the plaintiff, although including a demand for damages in the complaint, has not contemplated such recovery for a fixed sum, as damages, for breach of contract, is manifest; for not only is no claim therefor made in the brief presented to us in her behalf, but the committee, although making, as we have before stated, at her request, a finding of facts not based upon any allegations of the complaint, has nowhere made any such finding as would enable the court, even approximately, to fix the amount of any such judgment. The value of the real estate, and of the entire property, is indeed approximately found, but there is no statement or suggestion as to the clear estate which would remain after the payment of debts, charges and expenses; for which omission there can probably be no better reason than the one already given, that an accurate statement in regard to the matter, at the present time, would, by reason of necessary contingencies, be impracticable.

And, finally, notwithstanding the finding of the committee, as to the value of the plaintiff's services, made at her request, the plaintiff, in her brief, has advanced no claim for any recovery of that character, and to that extent. The only relief which in such brief is asked for, is that quoted by us, in the early part of this opinion, and the ground upon which such relief is claimed is, that "specific performance will be decreed, where the damages afforded by law are inadequate," it being stated that, in this case, the services rendered were of such a character that it is impossible to estimate their value to the promisor by any pecuniary standard; and that it is evident that the intestate did not intend to measure them by any such standard, and that it was impossible to compensate the plaintiff in damages. And also upon the further grounds that "specific performance will be decreed where there is an impossibility of ascertaining damages," and where "one has performed, and nonperformance by the other operates as a fraud upon the one performing." It may, therefore, seem as if, in the consideration of the question as to whether the plaintiff, in this action, can recover damages (as based upon a claim, and by way of legal relief), we have performed a work of supererogation. We have, however, deemed it best to examine it, both on account of its intrinsic interest and because the case itself, upon the facts found by the committee, presents such strong features in favor of the right of the plaintiff to such compensation, as, consistent with the rules of law, may be awarded to her; which it may not yet be too late to obtain through proper presentation of a proper claim, if, as we assume, such claim has not been presented to the administratrix.

The case is remanded to the Superior Court, which court is advised that if the plaintiff will undertake to allege and prove a due presentation of a proper claim against the estate, to the administratrix, prior to the bringing of her action, the court in its discretion may allow the amendment, and such further amendment, or substituted complaint, and further hearing thereon, as in its judgment may be necessary to properly present the plaintiff's case; and thereupon render judgment in her favor for such sum, if any, as she shall, by said court, be found entitled to recover. But upon the complaint as it now stands, and unless the same can be so amended, judgment must be rendered in favor of the defendant.

In this opinion the other judges concurred.