DocketNumber： No. 28493.
Citation Numbers： 118 P.2d 773, 11 Wash. 2d 114
Judges： Beals, Blake
Filed Date： 11/1/1941
Status： Precedential
Modified Date： 10/19/2024
I dissent. While defendants did not agree to bring a suit to quiet title, they did agree to hold their lien claims in abeyance pending suit to quiet title and to subordinate their claims to plaintiffs' lease. I think it is sufficiently alleged that defendants breached their contract to the damage of *Page 130 plaintiffs notwithstanding the pleader's use of the phrase that "they are informed and believe," etc. Under a liberal construction of the pleading, an issue is presented which may be traversed.
"A direct allegation of a fact may be expressed to be made ``upon information and belief'; and is not on that account bad on demurrer, even when the fact so stated may be presumed to be within the personal knowledge of the party pleading." 1 Abbott's Trial Brief on Pleadings (2d ed.), p. 113, 3.
Pomeroy, in his work on Code Remedies (5th ed.), p. 684, § 443, says:
"The true doctrine to be gathered from all the cases is, that if the substantial facts which constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, and defective, such insufficiency pertaining, however, to the form rather than to the substance, the proper mode of correction is not by demurrer, nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment."
In the note to that section, p. 691, the author adds:
"The objection that the averments in a complaint are made on information and belief is not a ground for demurrer." *Page 131