
    Reid v. Lyttle, et al.
    (Decided October 30, 1912.)
    Appeal from Clay Circuit Court.
    1. Pleading — Definiteness at Common Law — Code Provision. — At common law a pleading was sufficiently definite if it stated tbe facts with such, certainty as would enable tbe opposite party, and tbe court and jury, to understand tbe ground relied on by tbe pleader in support of bis claim or defense; and tbe Code provision is to the same effect.
    2. Pleading — Uncertainty of — When Demurrer Better Procedure.— While indefiniteness or uncertainty in a pleading should usually be presented by a motion that tbe pleading be made more definite and certain, a demurrer is the better procedure, where tbe uncertainty is such that the pleading states no cause of action or defense.
    .3. Pleading' — ¡Sufficiency of — ¡Construction Against Pleader. — In determining the sufficiency of a pleading, it will 'be most strongly construed against the pleader’.
    J. W. STIVERS and D. Wi. WHITE for appellant.
    H. C. FAULKNER and RAWLINGS & WRIGHT for appellees.
   Opinion op the Court by

Judge Miller —

Affirming.

By a signed paper dated October 29, 1908, appellant, S. B. Reid, and his wife, offered to sell to appellee, C. B. Lyttle all the coal and mineral rights under appellant’s, tract of 165 acres of land, at $5 per acre, provided the proposition should be accepted, in writing, within 90 days from its date. The option provided that upon its acceptance it was to become and operate as a bond for title for the coal and minerals under said lands, and other rights and privileges which usually go with such ownership.

On January 6, 1909, Reid’s proposition was formally accepted by a writing signed “J. H. Graham, Assignee, by C. B. Lyttle, Atty. in Fact.” On April 4, 1912, Reid brought this action against C. B. Lyttle, S. B. Dishman, D. L. Walker, E. G. Garrard, R. Carnahan, J. H. Graham and the Manchester Mining & Manufacturing Company, alleging that he had given such option to Lyttle, Walker, Garrard, Dishman and Carnahan, but that it had been taken in the name of Lyttle.

The petition further alleged that “the defendants, by the defendant, C. B. Lyttle, and J. H. Graham, by his* agent or attorney, C. B. Lyttle, accepted said option, and had a written notice of the acceptance delivered to this plaintiff;” * * * and, “that by the acceptance of said option or offer of sale the defendants, C. B. Lyttle, S'. B. Dishman, E. G. Garrard, D. L. Walker and R. Carnahan, or tlieir assigns, undertook and bound themselves to pay” the purchase price.

A general demurrer of Lyttle, Dishman, Carnahan, Walker and Garrard to the petition, was sustained; whereupon appellant amended his petition to read as follows:

“The plaintiff, S. B. Reid, for amendment to his petition herein says that the J. H. Graham who is purported to have signed the exhibit No. 2 filed with plaintiff’s petition (the acceptance) by C. B. Lyttle, Atty. in Fact, and who is designated as assignee of C. B. Lyttle and others, was, at the time of the acceptance, a sleeping, and silent partner of C. B. Lyttle, E. G. Garrard, R. Carnahan, S. B. Dishman and D. L. Walker. Wherefore, plaintiff prays as in the petition.”

Upon the motion of the defendants, the court required the plaintiff “to make said amended petition more definite and certain by alleging whether or not, the defendants were, at the time of the acceptance of the contract sued on, partners with the said J. H. Graham in the acceptance of the said contract;” and, the plaintiff having failed to comply with that order of the court, his petition was dismissed. He appeals.

In construing the petition as amended against the plaintiff, the trial court evidently held he had failed to allege that Graham was acting as a partner with Lyttle, Garrard, Carnahan, Dishman and Walker when he accepted appellant’s proposition, which is the foundation of this action. Appellees contend that the language of the amendment is general, and merely alleges that Graham'was a partner with Lyttle and the other defendants, without saying that he was a partner in this particular transaction, or that he acted as a partner when he accepted appellant’s offer.

Section 134 of the Code treating of amendments to pleadings, contains, among others, this provision:

“If the allegations of a pleading be so indefinite or uncertain that the precise nature of the claim or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.”

At common law a pleading was sufficiently definite if it stated the facts with such certainty as would enable the opposite party and the court and jury to understand the ground relied on by the pleader in support of his claim or defense; and the code provision supr'a is to the same effect. And while indefiniteness or uncertainty should usually be presented by a motion that the pleading be made more definite and certain, a demurrer is the better procedure where the uncertainty is such as to state no cause of action or defense. Louisville Ry. Co. v. Shanklin, 98 Ind., 573; Maddin v. Railway Co., 30 Minn., 453.

Evidently, the objection to the petition in the case at bar, goes to its insufficiency rather than to its indefiniteness, since it is apparent that plaintiff is trying to- recover upon the theory that Graham and the other defendants were partners and he was acting for them when he accepted the offer. The effect, however, of the ruling of the circuit judge was to hold the petition, as amended, insufficient, because it failed to show a partnership act by Graham; and in requiring plaintiff to state the necessary facts in that particular, it passed upon tbe sufficiency of the petition.

Tbe question for decision, therefore, is this: Is tbe allegation of tbe amended petition that Grabam was, at tbe time of tbe acceptance of tbe option, a partner with Lyttle and tbe other defendants, equivalent to an allegation that be was a partner of said defendants in this particular transaction sued on, and that be accepted tbe option for tbe partnership?

It is an elementary rule of pleading that a plaintiff must state a cause of action against tbe defendant; and, in determining whether be has done so, tbe pleading is to be most strongly construed against tbe pleader. Applying this elementary rule to the petition, it cannot be said that it alleges that Graham was a partner with Lyttle and the other defendants in this particular transaction, or that he signed it for the partnership; it merely says be was their partner at tbe time be signed the acceptance.

Tbe allegation of tbe petition is not inconsistent with the idea that Grabam may have been a partner with Lyttle and the other defendants in some other transaction, or in many other transactions, at tbe time be signed tbe acceptance. To make bis petition good, be should have gone further and alleged, in substance, that Graham was tbe partner of Lyttle and the other defendants in tbe purchase, which is tbe subject of this action, and that in accepting said option be was acting for tbe partnership. This be failed to do.

Judgment affirmed.  