COMPLAINTS IN ACTIONS FOR THE VALUE OF
GOODS SOLD AND DELIVERED.

[Principal Case, p. 1, this Vol.]

Alabama.-Smith v. Dick, 95 Ala., 311; s. c., 10 So. Rep., 845. (In an action on an account for merchandise sold, it is sufficient to allege that plaintiff claimed "of defendant the sum of $100 for a mule that plaintiff sold defendant.") California. -Behlow v. Short, 91 Cal., 141; s. c., 27 Pac. Rep.,. 546. (Complaint is not ambiguous or uncertain because it fails to state where the goods were sold.) Colorado.-Wilcox v. Jamison, Colo., 1894, 36 Pac. Rep., 902. (An averment of defendant's indebtedness in a specified sum, and that he has not paid any part thereof, is equivalent to an averment that the indebtedness is due and unpaid, there being nothing to indicate the contrary.) Indiana.-Jaqua v. Shewalter, Ind. App., 1893, 36 N. E. Rep., 173; reargument, 37 id., 1072. (Complaint must allege that the debt is due and unpaid.) Michigan.-Allis v. Voigt, 83 Mich., 537; s. c., 47 N. W. Rep., 334. (Under the common counts for a machine sold and delivered, plaintiff cannot recover for an extra wheel which he furnished because the original wheel had been broken by defendant's truckman, as defendant's liability therefor would not depend merely upon the questions, whether the wheel was furnished and whose duty it was to furnish it, but would involve other issues, as to whether defendant was responsible for his servant, and if the servant was negligent.) Richards v. Burroughs, 62 Mich., 117; s. c., 28 N. W. Rep., 755. (It is not necessary to set forth the contract or the breach thereof.) Robinson v. Watson, 101 Mich., 466; s. c., 59 N. W. Rep., 811. (It is sufficient to allege defendant's promise to plaintiff's assignor, without alleging promise to plaintiff.) Minnesota.—Pioneer Fuel Co. v. Hager, Minn., 1894, 58 N. W. Rep., 828. (Complaint alleging that "defendant is indebted to plaintiff in the sum of $321.23, upon an account for goods s id and delivered to him at his request," is bad both at common law and under the new procedure, in that it does not state by whom the goods were sold.) New York.— Swan Lamp Manuf. Co. v. Brush-Swan Electric L. Co., 18 N. Y. Supp., 869; s. c., 46 State Rep., 535. (Under the Code of Civil Procedure, a party who has fully performed a special contract for sale of goods may count on the implied assumpsit of the purchaser to pay the stipulated price, and is not bound to declare specially on the agreement.) Newton v. Browne, 6 Misc., 603; 56 State Rep., 605; s. c., 26 N. Y. Supp., 83. (Complaint must allege that the debt is unpaid.) South Carolina.-Cone Export, etc. Co. v. Poole, 41 S. C., 70; s. c., 19 S. E. Rep., 203. (Form of complaint approved.) Texas.-Petri v. Neimeyer, Tex. Civ. App., 1894, 26 S. W. Rep., 266. (Petition not demurrable for failing to show when the demand became due, where it alleges that it is past due and unpaid, and the account attached shows that it has become due.)

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SPLITTING CAUSE OF ACTION.

[Principal Case, p. 5, this Vol.]

Colorado.-Hallack v. Gagnon, 4 Colo. App., 360; s. c., 36 Pac. Rep., 70. (Recovery for four months delay, under an agreement to pay a specified sum per month in case of delay in the completion of a building, is not a bar to a recovery for additional delay.) Indiana.-Smiley v. Deweese, Ind., 1891, 27 N. E. Rep., 505. (Plaintiff cannot be required to separately state and number different breaches of an entire contract.) Kansas.German Fire Ins. Co. v. Bullene, 51 Kan., 764; s. c., 33 Pac. Rep., 467. (Debtor cannot by assignment split cause of action.) Bolen Coal Co. v. Whittaker Brick Co., 52 Kan., 747; s. c., 35 Pac. Rep., 810. (Recovery on part of a running account bars a recovery on the remaining portion.) Maryland.-Olmstead v. Bach, 78 Md., 132; s. c., 27 Atl. Rep., 501. (Only one action lies for a breach of contract of employment because of a wrongful discharge, and employé cannot bring successive actions for installments of wages, though he continues out of employment.) Michigan.-Continental Ins. Co. v. H. M. Loud Lumber Co., 93 Mich., 139; s. c., 53 N. W. Rep., 394. (An insurance company, subrogated to a portion of the claim against one whose negligence caused the loss, cannot bring an action to recover only a portion of the damage caused.) Minnesota.-Bowe v. Minnesota Milk Co., 44 Minn., 460; s. c., 47 N. W. Rep., 151. (By contract, defendant, a corporation, agreed to take all the milk produced by plaintiff during a year. Before the expiration of the year the defendant corporation dissolved and thereby rendered itself incapable of taking the milk. Held, that defendant's act constituted a breach of the whole contract, and a recovery for failure to take the milk for three months barred another action for failure to take the milk during a subsequent period.) Missouri.-Williams v. Kitchen, 40 Mo. App., 604. (Two notes constitute independent causes of action, though given in the same transaction, and a recovery on one after the maturity of both will not bar an action on the other.) New York.-Underhill v. Collins, 15 N. Y. Supp., 495. (Where rent is payable in monthly installments, a recovery of all the rent due up to the time of the action, against a tenant who quitted the premises, does not bar an action for installments subsequently falling due.) Miller v. Union Switch & Signal Co., 13 N. Y. Supp., 711; s. c., 37 State Rep., 110. (Where there are several assignments of installments, due at different times, to different assignees, one assignee is not barred from recovering because another assignee has recovered in a previous action, though the installments of both were due when the first action was brought, and the assignor could have maintained but one action for all installments due, if the assignments had not been made.) Samuel v. Fidelity & Casualty Co., 76 Hun, 308; s. c., 27 N. Y. Supp., 741. (In an action for breach of a contract to become surety, recovery was had for the expenses which had then been incurred in getting other sureties, held, that a subsequent action could not be maintained to recover a sum paid to the new sureties which was agreed to be paid upon the happening of a contingency, though it occurred after the former action.) Lorillard v. Clyde, 122 N. Y., 41; s. c., 25 N. E. Rep., 292. (Recovery of a dividend for one year upon a guaranty

J

of an annual dividend of 7% for seven years does not bar an action upon the guaranty for a dividend of a subsequent year.) North Carolina.— Simpson v. Elwood, 114 N. C., 528; s. c., 19 S. E. Rep., 598. (Separate actions may be maintained, in order to bring them within the jurisdiction of the justice's court, on each item of an account of goods sold at different times, where the account has not become an account stated.) Marks v. Ballance, 113 N. C., 28; s. c., 18 S. E. Rep., 75. (Where separate accounts have been consolidated into an account stated, they cannot afterwards be separated, so as to bring them within the jurisdiction of the justice's. court.). Pennsylvania.—Hill v. Joy, 149 Pa. St., 243; s. c., 24 Atl. Rep., 293. (Recovery of the proportion of oil taken from part of the land leased, which had been reserved as rent, bars a subsequent action for the failure to operate for oil upon other lands included in the lease for which a differ-ent proportion of oil was to be paid as rent.) Terreri v. Jutte, 159 Pa. St., 244; s. c., 28 Atl. Rep., 225. (A superintendent who agrees to work for a salary and also to board and furnish supplies to workmen, is not barred from recovering from his employer for money paid out for board and supplies by having previously recovered his salary in an action therefor.) United States.-Butterfield v. Town of Onterio, 44 Fed. Rep., 171. (Interest coupons to a negotiable bond are independent promises, and a recovery on one will not bar a subsequent action on another, though both coupons were due when the first action was brought.)

COMPLAINTS IN ACTIONS UPON BUILDING

CONTRACTS.

[Principal Case, p. 32, this Vol.]

Alabama.-Davis v. Badders, 95 Ala., 348; s. c., 10 So. Rep., 422. (No special allegation of the obtaining of the architect's certificate is necessary, where it is alleged that plaintiffs have complied with all the provisions of the contract on their part, and erected the building according to the contract.) Florida.-Wilcox v. Stephenson, 30 Fla., 377; s. c., 11 So. Rep., 659. (Allegation in the short form of the performance of all conditions precedent includes the obtaining of architect's certificate.) Illinois.-Galbrath v. Chicago Architec. Iron Works, 50 Ill. App., 247. (Where everything has been done, including the obtaining of the architect's certificate, recovery may be had under the common counts.) Missouri.-Williams v. Chicago, etc., Ry. Co., 112 Mo., 463; s. c., 20 S. W. Rep., 631. (In an action for work done under a contract by which the compensation for the work was to be determined by an engineer's measurements, under a quantum meruit, plaintiff can show that the engineer had not measured the work according to the contract.) Ray v. Boteler, 40 Mo. App., 213. (The obtaining of architect's certificate, included in averment in short form of the performance of all conditions precedent by plaintiff.) New York.-Weeks v. O'Brien, 141 N. Y., 199; (Where an architect's certificate is a condition builder's complaint must allege generally or

s. c., 36 N. E. Rep., 185. precedent to payment,

specially the performance of that condition, or set forth facts sufficient to excuse it. It is not enough to allege that the building was completed according to the terms of the contract.) Gillies v. Manhattan Beach Imp. Co., 73 Hun, 507; s. c., 26 N. Y. Supp., 381. (Where the contract has been fully completed, builder may sue on a quantum meruit.) Logan v. Berkshire Apartment Ass'n., 18 N. Y. Supp., 164; s. c., 46 State Rep., 14. (Details of contract need not be set out; it is sufficient to allege the terms generally, and upon the trial prove full performance.) Elting v. Dayton, 67 Hun, 425; s. c., 51 State Rep., 439; 22 N. Y. Supp., 154. (Though complaint allege full performance, it may be amended so as to allege a modification or waiver of a stipulation, in order to conform it to proof.) Pennsylvania.-Gillison v. Wanamaker, 140 Pa. St., 358; s. c., 21 Atl. Rep., 361. (In an action on a building contract by which payment for extra work depended upon the architect's certificate of what was reasonable, plaintiff cannot recover for extra work, where no affidavit of defense is interposed, if his statement of claim merely alleges that after the work was done, it was examined and approved by the architect.)

COMPLAINTS IN ACTIONS FOR THE VALUE OF SERVICES RENDERED, THE AGREED COMPENSATION, OR DAMAGES FOR A WRONGFUL DISCHARGE.

[Principal Case, p. 40, this Vol.]

California. Foltz v. Cogswell, 86 Cal., 542; s. c. 25 Pac. Rep., 60. (A complaint alleging both agreed price and the value of services rendered, regarded as on implied contract, and the evidence of the value of the services admitted.) Burns v. Cushing, 96 Cal., 669; s. c., 31 Pac. Rep., 1124. (In an action for legal services, complaint alleging that in May and June, 1884, defendant retained plaintiff in certain actions, and that in pursuance of such retainer, plaintiff rendered valuable services to said defendants since May or June, 1884, up to Jan. 29, 1890-is not demurrable because ambiguous; defendant should have demanded a bill of particulars.) Illinois.—Bean v. Elton, 44 Ill. App., 442. (Under the common counts for labor done, no recovery can be had for damages for breach of the special contract.) Chicago, etc., R. Co. v. Johnson, 44 Ill. App., 224. (The agreed compensation may be shown under the common counts.) Stanhope v. School Directors, 42 Ill. App., 570. (Where by statute public school teachers are required to have a certificate of qualifications as a condition precedent to their right to receive any portion of public money, the declaration of a teacher in an action for salary must allege compliance with such condition, and it is not enough to aver generally, that the teacher is legally or lawfully qualified.) Mount Hope Cem. Ass'n v. Weidenman, 139 Ill., 67; s. c. 28 N. E. Rep., 834. (Where the common counts have been filed, it is not improper to allow amendment by filing a special count founded on breach of contract.) Indiana.-Brickey v. Irwin, 122 Ind., 51; s. c. 23 N. E. Rep., 694. (In an action for

professional services, complaint is demurrable, if it contain no allegation that defendant is indebted to plaintiff, or that the sum she promised to pay is due and unpaid.) Puterbaugh v. Puterbaugh, 7 Ind. App., 280; 33 N. E. Rep., 808. (Complaint regarded as on quantum meruit, which alleged that defendant's testator agreed to provide for plaintiff in his will, if he would live with him, that deceased failed to so provide for him, and that plaintiff's services were worth $5,000.) lowa.-Wernli v. Collins, 87 Ia., 548; s. c. 54 N. W. Rep., 365. (Where plaintiff sues on express contract for services rendered, he cannot recover on quantum meruit.) Maryland.-Fairfax, etc., Manuf. Co. v. Chambers, 75 Md., 604; s. c. 23 Atl. Rep., 1024. (Under the common counts, plaintiff may give evidence of value of services, though it appears that the services were performed under a special contract. In such a case, however, it is the usual practice to join with the common counts a special count on the contract.) Massachusetts.-Paige v. Barrett, 151 Mass., 67; s. c. 23 N. E. Rep., 725. (In an action for wrongful discharge, it is not a material defect for the declaration to conclude "wherefore, defendants owe him * * * the amount of his wages.") Michigan.-Wyatt v. Herring, 90 Mich., 581; s. c. 51 N. W. Rep., 684. (Where there are both the common counts and a special count on the contract, if the evidence only supports the special count, and fails to show the value of the services, recovery cannot be had on the common counts.) Mississippi.-Gibson-Moore Manuf. Co. v. Meek, 71 Miss., 614; s. c. 15 So. Rep., 789. (Under the new procedure, a declaration alleging that plaintiff hired defendant for one year at $10 a week; that without any fault on his part he was discharged; and that defendant was indebted to him for the time he contracted at $10 a week, is sufficient as against demurrer, or after verdict.) Missouri.—Glover v. Henderson, 120 Mo., 367; s. c. 25 S. W. Rep., 175. (In an action for wrongful discharge, petition set out the contract, averred a wrongful discharge, and the value of the services rendered. Held, that the action was for quantum meruit, and not for damages for breach of contract.) Ryors v. Prior, 31 Mo. App., 555. (In an action for attorney's fees, a petition which sets out the services rendered, states the value, and charges that the plaintiff refused to pay, is not open to the objection that it does not allege that the account is due.) Nebraska.—Small v. Poffenbarger, 32 Neb., 234; s. c. 49 N. W. Rep., 337. (Complaint alleging that there is due from plaintiff for work and labor done and performed by defendant at plaintiff's request in years specified, a certain sum of money, no part of which has been paid, should not be dismissed for failing to state a cause of action, though it does not state the value of the services or plaintiff's promise to pay therefor.) Imhoff v. House, 36 Neb., 28; s. c. 53 N. W. Rep., 1032. (Where complaint in an action for services seeks to recover on quantum meruit, evidence of a contract for a fixed amount is inadmissible.) New York.— Meissner v. Brennan, 39 State Rep., 443; s. c. 15 N. Y. Supp., 671; 21 Civ. Pro. R., 36. (An allegation of the value of the services rendered is admitted, if not denied, but if the agreed compensation and value are both alleged, the action will be regarded as on the express contract, and defendant need not deny the allegation as to value.) Foley v. Mail & Exp. Pub. Co., 8 Misc., 91; s. c. 28 N. Y. Supp., 778. (Where employment was