The complaint alleges facts which would justify a finding that there was a total breach of the contract by the defendant; that the plaintiff complied with the contract on his part and earned a certain sum of money under' it, and that by reason of the premises the plaintiff has been damaged to the amount of $750, payment of which was demanded and refused. I think this is sufficient on demurrer to sustain the complaint. It is quite possible that the plaintiff did not know that he was alleging a cause of action for a breach of contract, as the complaint contains many allegations which are quite immaterial upon that cause of action ; but when a cause of action is alleged I do not think that the court is justified in sustaining a demurrer to it because the plaintiff has sought to sustain it as alleging a cause of action that was not alleged.
I dissent, therefore, from the reversal of this judgment.
Laughlin, J., concurred. \
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.