day of , 1887, 1. Admit that on the the plaintiff, made and entered into a contract with defendants to take 100 head of cattle or more, not to exceed 200 head, and to keep them in good condition, give them good care and plenty of food, and deliver them to defendants, or order, in the spring of 1888, and at a time when they could live well on grass, for the sum of $4.50 each, to be paid for in full by the defendants on delivery of the cattle in good condition in the spring of 1888. 2. Aver that on the 7th day of September, 1887, the defendants delivered to the plaintiff, and the plaintiff received from the defendants, 123 head of cattle in good health and condition, to be cared for, properly fed, and delivered to defendants in good condition in the spring of 1888, according to the terms and provisions of said contract. 3. That plaintiff then received said 123 head of cattle upon the above conditions, and undertook to use due and proper care in the management of said cattle, to properly feed, water, and shelter the same, and deliver them in good condition to the defendants at the time therein stated, but the plaintiff, not regarding his promise and undertaking, did not and would not take proper care of said cattle, and did not properly feed, water, or shelter the same; and when he was requested to redeliver the said 123 head of cattle at the time mentioned in said agreement, delivered only 74 of said cattle, and he has failed and neglected to deliver 49 head or any number thereof, and has not paid the value thereof, amounting to the sum of $980, though often requested so to do; but, on the contrary, the plaintiff so negligently and carelessly conducted himself with respect to said cattle, and took so little care of them, and failed to properly feed, water, and shelter them, that, by and through the said negligence and improper conduct of the plaintiff and his servants in that behalf, the said 123 head of cattle all became poor, thin in flesh, and weak in condition, and 49 head of said cattle, from want of proper food, care, and attention on the part of the plaintiff, and while the same were in his custody, died, to the defendants' damage in the sum of $980. 4. Defendants further allege that, in order to prevent the whole of said cattle from dying of starvation and exposure, they were compelled to and did incur great expense, to wit, $199, in furnishing said cattle with proper care and attention while the same were in plaint iff's possession under the contract aforesaid; that he was under obligation to furnish the same, but failed, neglected, and refused so to do, to defendants' damage in the sum of $199. Wherefore, [etc.]. §316. JUDGMENT [OR DECREE]. FORM No. 629-For plaintiff.-Damages for breach of contract to purchase. (In Central Oil Co. of L. A. v. Southern Refining Co., 154 Cal. 165; 97 Pac. 177.) [Title of court and cause.] [After recitals as to appearances, hearing, submission, filing of findings, etc.:] Wherefore, by reason of the law and findings aforesaid, it is ordered, adjudged, and decreed, that the Central Oil Company of Los Angeles, the plaintiff, do have and recover of and from the Southern Refining Company, the defendant, the sum of $6,500, with interest thereon at the rate of seven per cent per annum from the date hereof until paid, together with the plaintiff's costs and disbursements incurred in this action, amounting to the sum of $25.50. Dated October 24, 1906. G. A. Gibbs, Judge of Superior Court. For substance of complaint in action to recover damages for alleged breach of contract of sales, see Kirchman v. Tuffli Bros. (Ark.), 122 S. W. 239. Form of demurrer in an action for breach of contract: Ford v. Gregson, 7 Mont. 89, 95, 14 Pac. 659. Form of answer in an action for the recovery of money paid for the purchase of lots under an agreement to the effect that each member of an association, composed of the plaintiff and the defendants, was to pay two dollars a week, and at drawings, held each week, one of the members was to receive a lot: Branham v. Stallings, 21 Colo. 211, 212, 40 Pac. 396, 52 Am. St. Rep. 213. § 317. ANNOTATIONS.-Breach of miscellaneous contracts of sale. 1. Basis of contract liability. 2. Complaint for breach of contract of sale. 3. On agreement to furnish laborers. 4. Option agreement.-What complaint must set forth. 5, 6. Entire and severable contracts-Distinctions. 7. Test of divisibility of contracts. 8, 9. Actions upon instalment contracts.-When judgment is a bar. 10. Defense of non-delivery of contract. 11. Agreement to pursue independent measures of redress.-Defense based upon. 1. Basis of contract liability.-Ordinarily, there must be a request from a person authorized to make the same to constitute a basis for contract liability; but there are some exceptions to this rule, as where a person is under a moral and legal obligation to do an act, and another does it for him under such circumstances of urgent necessity that humanity and decency admit of no time for delay. In such a case it is sufficient to allege the facts showing the immediate necessity for the services rendered and the impossibility of making a precedent request or promise to pay: Commissioners of Sheridan County v. Donebrink, 15 Wyo. 342, 89 Pac. 7, 9, 9 L. R. A. (N. S.) 1234, (against county commissioners to recover for surgical and medical services rendered an indigent person). Andrew That by time within 2. Complaint for breach of contract of sale.-A complaint in an action for damages for breach of an alleged contract has been held sufficient where the material allegations are, in substance: That on the 16th day of October, at Wellsville, Utah, the plaintiffs (appellants) and defendants (respondents) entered into a certain written contract, in words and figures as follows: "Oct. 16, '03. I hereby agree to sell and deliver to Bailey & Sons at their place of business in Logan City, Utah, 125 bushels of lucerne seed at the rate of $.10 per pound after same seed is recleaned; said seed to be in said David & Andrew Leishman's sacks. [Signed] Leishman. David Leishman." the terms of said contract the defendants had agreed to deliver the said seed to the plaintiffs at said Logan City within a reasonable time; that ten days or less after the making of said contract was а reasonable which to deliver the said seed, and the defendants could have delivered the same to plaintiff within said time had they chosen to do so; that plaintiffs have at all times been able and willing to purchase from defendants said seed at the rate of 10 cents per pound as expressed in the memorandum of agreement; that plaintiffs at all times had been ready, willing, and able to pay defendants said 10 cents per pound for said seed upon the delivery and recleaning thereof; that have defendants wholly failed and neglected to deliver said seed or any part thereof to plaintiffs, and have refused to deliver said seed or thereof, any part notwithstanding that the plaintiffs on the 7th day of November, 1903, and at divers certain times prior thereto, demanded of the defendants that they deliver the said seeds in accordance with the terms of the said agreement between the said parties; that by reason of the failure to deliver said seeds plaintiffs allege that they have been damaged in the sum of $150, for which they demand judgment, etc.: Bailey v. Leishman, 32 Utah 123, 89 Pac. 78, 79, 13 Am. & Eng. Ann. Cas. 1116 (for damages for breach of contract). 3. On agreement to furnish laborers.In an action for damages for breach of a contract against a company for negligently failing to keep its promise, in that it did not furnish experienced laborers in time, and in that it did not properly instruct the laborers actually furnished, the complaint is insufficient where it is impossible to say what, if any, portion of the damages resulted from the fault of the company, and what portion from the fault of the plaintiff himself; and this especially where the complaint is not of the failure of the company to instruct plaintiff's laborers but only of its failure to properly instruct them. It is elementary that in order to maintain an action, the complaint must set forth facts which, if true, put the defendant in the wrong: Smith v. Billings Sugar Co., 37 Mont. 128, 94 Pac. 839, 841, 15 L. R. A. (N. S.) 837, (for damages for breach of contract). an 4. Option agreement.-What complaint must set forth.-The complaint in action for damages for a breach of contract to sell under an option agreement should set forth the option, alleging its execution to the plaintiff, with averments that the plaintiff had elected to take the land under the option; the value of the land; the refusal of the defendant to comply with the terms of the option; that the defendant had, before the expiration of the option, sold the land to a third party, or that he had from otherwise incapacitated himself performing the contract on his part; the damages suffered by the plaintiff by reason of the failure and refusal of the the option: plaintiff to comply with Palmer v. Clark, 52 Wash. 345, 100 Pac. 749. (The text of this note is not taken from the decision proper; it is rather an adaptation from a preliminary statement by the court.) 5. Entire and severable contracts.-As a general rule, it may be said that a contract is entire when by its terms, nature, and purpose it contemplates and intends that each and all of its parts and the consideration shall be common each to the other and interdependent. On the other hand, it is the general rule that a severable contract is one in its nature and purpose susceptible of division and apportionment. The question whether a given contract is entire or severable is very largely one of intention, which intention is to be determined from the language the parties have used and the subject-matter of the agreement. The divisibility of the subjectmatter or the consideration is not necessarily conclusive, though of aid in arriving at the intention. Where it reasonably appears from the language of the contract or from its terms that the parties intended that a full and complete performance should be made with reference to the subject-matter of the contract by one party in consideration of the obligation of the other party the contract is said to be entire. It is very difficult to lay down a rule which will apply to all cases, and consequently each case must depend very largely on the terms of the contract involved: Pacific Timber Co. v. Windmill Co., 135 Iowa 308, 112 N. W. 771, cited in Quarton v. American Law Book Co. (Iowa), 121 N. W. 1009, 1015. 6. As to the distinction between an entire and an apportionable contract, see Hildebrand v. American Fine Arts Co., 109 Wis. 171, 85 N. W. 268, 53 L. R. A. 826; Tilton v. James L. Gates L. Co., 140 Wis. 197, 121 Wis. 331, 334. 7. Test of divisibility of contracts.-If a contract contains language which obligates the party to make partial payments, then it is divisible, and an action may be maintained on the instalments as they become due before performance is completed: La Coursier v. Russell, 82 Wis. 265, 52 N. W. 176; Clark v. Clifford, 25 Wis. 597; Tilton v. James L. Gates L. Co., 140 Wis. 197, 121 N. W. 331, 334. 8. Actions upon Instalment contracts. -When payments of money are to be made periodically, separate actions may be maintained in succession for instalments as they mature subject to this provision: All sums due when an action is begun must be included in it: Puckett v. National Ann. Assn., 134 Mo. App. 501, 114 S. W. 1039, 1041; Union R. Co. v. Traube, 59 Mo. 355, 362; Adler v. Railroad, 92 Mo. 242, 4 S. W. 917; Kerr v. Simmons, 9 Mo. App. 376; Priest v. Deaver, 22 Mo. App. 276; Williams v. Kitchen, 40 Mo. App. 604; West v. Moser, 49 Mo. App. 201; Miller v. Union Switch etc. Co., 59 Hun 624, 13 N. Y. Supp. 711; Lorillard v. Clyde, 122 N. Y. 41, 45, 25 N. E. 292, 19 Am. St. Rep. 470. 9. If all payments are due, and if one is omitted, a judgment in the case will be a bar to a second action to recover it: United R. etc. Co. v. Traube, 59 Mo. 355, 365; Puckett v. National Ann. Assn., 134 Mo. App. 501, 114 S. W. 1039, 1049; Reformed Dutch Church v. Brown, 54 Barb. 191. 10. Defense of non-delivery of contract. Where a defense is based upon non-delivery of a written contract, there should be a denial of execution under it; as the execution of an instrument imports its delivery: Hart V. Harrison etc. Co., 91 Mo. 414, 422, 4 S. W. 123; North St. Louis etc. Assn. v. Obert, 169 Mo. 507, 517, 69 S. W. 1044; American Copying Co. v. Muleski, 138 Mo. App. 419, 122 S. W. 384, 385. Form No. 630. For work and services. (Common form.)...... Form No. 632. By employee against employer, for failure to Form No. 633. By employer against employee, for damages Form No. 634. Form No. 635. Page 1264 1264 1265 1265 1266 1266 1267 ....... 1267 1268 1269 1269 1270 1270 Form No. 636. For work, etc., comprising different items..... Form No. 639. By physician, for services.... Form No. 640. On builders' contract, with claim for extra work ...... Form No. 641. By attorneys, for services...... By surviving partner of a law firm, to recover Form No. 645. Defense where damages exceed alleged value Form No. 648. Defense of special denial, and accounting and payment. 1276 §318. COMPLAINTS [OR PETITIONS]. FORM No. 630-For work and services. (Common form.) [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That the defendant is indebted to this plaintiff in the sum of $ , for work and services rendered by the plaintiff to the defendant, at defendant's instance and request, as a clerk [or otherwise], between the day of , 19, and the day of 19. |
