Murdock v. Caldwell

Chapman, J.

The original declaration having been held bad On demurrer, (see 8 Allen, 309,) a new declaration has been filed, and this is also demurred to. A copy of the contract is annexed to the new declaration, and new averments are made in respect to it.

A defect of this declaration which is apparent at first sight is, that it does not allege a breach of contract by the defendant. It alleges that he disabled himself from performing it, and prevented the plaintiff from performing it on his part. From this tt might be inferred that the defendant did not perform; but *302allegations in pleading must be direct, and are bad if they depend on mere inference. This however is not one of the most material causes of demurrer, and might be cured by amendment. Other causes involve the cause of the action itself, and make it necessary to construe the contract declared on.

The obscurity of the. phraseology which the parties have selected embarrasses us in our attempts to construe the contract, and must have been embarrassing to the pleader in framing his declaration. As we understand the contract, it contains four distinct clauses. The first clause contains a general statement of the compensation which the plaintiff was to receive. It was to be a certain proportion of the whole capital stock of the company, but we do not think it stipulates for a limitation of the whole capital stock to the sum of two hundred and fifty thousand dollars. The second clause states the service which the plaintiff was to perform. We do not understand that clause to stipulate for any limitation of the capital stock; but it states what proportion of the whole stock the plaintiff might sell. The third clause fixes his compensation if his sales should not be equal to the amount mentioned in the second clause. The fourth clause limits the time within which the sales were to be made.

Our practice requires that a declaration shall state the substantive facts necessary to constitute the cause of action with substantial certainty. In this case, the consideration of the defendant’s contract is the executory contract of the plaintiff. In declaring on such a contract at common law, it was necessary for the plaintiff to aver performance on his part, or a readiness to perform, together with a statement of facts which would constitute a legal excuse for non-performance, and generally the offer to perform or notice to the defendant. 1 Chit. Pl. 351, et seq. These being matters of substance, the averments are as necessary now as they were before the statute.

In this case the plaintiff’s agreement was not only to sell stock, but to collect the pay for it. The declaration does not allege that he performed this contract, or offered to perform it, or gave notice of readiness to perform it; nor does it set forth any facts which constitute a legal excuse for non-performance. The *303excuse alleged is, that the company fixed their capital stock at a larger sum than $250,000. But by our construction of the contract such an act was not in violation of the contract or inconsistent with it, and therefore did not constitute a valid excuse. The allegation that this act disabled the plaintiff from performing the contract is founded upon a misconstruction of the contract. This point seems to be decisive of the merits of the case, and it is not necessary to discuss the other points which have been argued.

Demwrrer sustained.