
    Chesbrough vs. The New York and Erie Rail Road Company.
    An agreement to enter into a contract is fulfilled when the contract has been entered into by the parties, pursuant to the terms of the agreement. The original agreement being then fv/nctus officio, it cannot be made the basis of an action, in connection with the final contract.
    And if the complaint, in such an action, avers that the second contract was executed “in lieu” of the first, but fails to show that any important rights had intervened between the making of the two contracts, making it necessary to sue upon the first, all the allegations respecting the original agreement will be stricken out of the complaint, on motion, as.being irrelevant and redundant.
    A complaint alleging that the plaintiff, at the defendants’ request, rendered to them other services, as agent, for which he is entitled to have, as a fair reward, fifty dollars; also for work, labor and services done, and materials furnished by the plaintiff for the defendants, is insufficient, as being indefinite and uncertain.
    The objection to a complaint, on this ground, must be taken not by demurrer, but by motion to strike out, or that the complaint be made more certain and definite.
    
      Allen v. Patterson, (3 Seld. 476,) commented on.
    
      MOTION to strike out certain parts of the complaint, as irrelevant and redundant, and as to other portions of the complaint, that they he made definite and certain.
    
      Charles Tracy, for the plaintiff.
    
      D. B. Eaton, for the defendants.
   Peabody, J.

The plaintiff in his complaint alleges, that on the 8th of May, 1841, an agreement was made between him and his associates on one side, and the defendants on the other side, and was reduced to writing and signed; which provided, in substance that a contract, to the effect therein particularly stated, for the construction of about fifty miles of the defendants’ road, should be entered into between the parties thereto, as soon as the same, together with the requisite plans and specifications, could be prepared. A copy of this agreement is set forth in the complaint, which states, with some precision, what was to be the tenor of the contract therein provided for. After setting forth this “ memorandum of agreement,” the complaint proceeds to state that said agreement was afterward modified, amended and enlarged by the parties,” and in lieu thereof “ a final contract,” under the same date, and ratified and approved by the defendants on the 19th of February, 1842, was executed by the parties ; of which last mentioned contract a copy is then set forth in the complaint. No objection is made that the second or final contract is imperfect, or fails fully to express the intent of the parties. The first of these contracts the defendants move to strike out as irrelevant and redundant.

At first view, it seems to be pretty clear that an agreement to enter into a contract is fulfilled when the contract, pursuant to the terms of the agreement, has been entered into and accepted by the parties, and that being so, it is functus officio, and cannot be made the basis of an action That is the case here. The pleading expressly states that the latter or final contract stipulated for in the original agreement was entered into, and that it was “ in lieu” of the former. If so, it super» sedes it, and the rights of the parties under the former have been terminated by the fulfillment of it and the substitution of the second in the place of it. But it is argued that the earlier one having preceded the later by some months, rights may have arisen under it which can only be enforced by proceeding on that; and that the final contract, although intended by the parties to cover all the ground covered by the first, may not be as full and comprehensive in all respects; and that the court, on this motion at all events, will not assume that the plaintiff can have no rights under the first, which he has not, to the same extent, and capable of being enforced in a manner equally beneficial, under the second, Perhaps the court would not so decide if -the pleadings contained any suggestions of that Mnd, or were framed with reference to, or even in a manner to admit, such a use of the original agreement. If, for instance, the first agreement were set forth as the basis of an action, and the second one were set out as another ground of action, and breaches of the former as well as the latter were alleged, so that the plaintiff, on the trial, could, under some conceivable state of circumstances, avail himself of the earlier contract, there might be some reason to hesitate. But in this complaint the second is expressly averred to have been given in lieu” of the first, and this statement, so far from suggesting such a contingency as was named on the argument, and a resort to the earlier contract in case it should arise, or even leaving the plaintiff at liberty to make such a use of it, seems expressly to exclude it; and by declaring that the later was given in lieu” of the earlier—that is, in the place, room or stead of it—in effect, declares that the earlier one has been removed from the place it occupied between the parties as their contract and the later one installed therein.

If, as is averred, the final contract is given in lieu, or in place of the earlier one, it must supersede and displace it; and unless in some respect it fails of this end, (which we are forbidden, by the averments in this pleading to presume,) and thus fails to answer the purpose for which it was intended, the instrument thus supplanted is dispensed with, and is not available to the plaintiff as the basis of an action, for it is not a subsisting contract between the parties. The pleading, therefore, shows that the earlier contract being fulfilled and superseded by the second, does not and cannot form the basis of this action, or of any claim■; and as it is not otherwise relevant as the pleading now stands, the motion to strike it out must be granted. The plaintiff is at liberty, however, to amend his pleading, with a view to retaining this part of it, if he be so advised.

The causes of action stated in folios 116 and 117 of the complaint, are not stated with sufficient definiteness and certainty. It is sometimes said at the bar, and very eminent judges have said from the bench, that the provisions of the code have been repealed by judicial decision, which has, in effect, reinstated the common counts as used under our former system of pleading. But no mode of pleading as vague and indefinite as is adopted in this case has received the sanction of any court whose decisions are entitled to be regarded as authority here.

At folio 116 the plaintiff says that he, at their request, rendered to the defendants other services, “ as agent,” for which he is entitled to have, as a fair reward, fifty dollars ; and at folio 117, in similar terms, he counts for work, labor and services done, and material furnished by the plaintiff for the defendant. I think there is no authority for such indefiniteness and uncertainty in pleading as this. As to the first of these causes of action no date is given, and the nature of the services is not stated. The subject of the services, the place where, and the subject matter on or respecting which they were rendered, are not, nor is either of them, stated; and without some of these, at least, the defendant is not sufficiently notified of the natme of the claim to enable him either to answer or prepare for trial intelligently. I do not say that the omission of each of these is itself conclusive against the sufficiency of the pleading; on the contrary, some of them might probably be dispensed with, or stated generally, and still leave the pleading sufficient, if the others were fully and particularly stated. The services might, I presume, be sufficiently designated to inform the defendant of the cause of action without a statement of all these particulars, but some of them certainly should be given. Some description or designation of the services for which compensation is claimed, the defendant certainly has a right to demand. As it now stands, any kind of services “ as agent,” respecting any subject matter, at any time, at any place, comes within the terms of the allegation, so general and indefinite is the language of the complaint; and may be proved under it.

The fifth cause of action, at folio 117, is stated, if possible, even more vaguely than the one last referred to. In this the claim is for work, labor and materials furnished; and it does not even designate the time, place or character of either, at all, in any one respect; not even as far as the last, in which the plaintiff does say that the services therein mentioned were rendered “ as agent."

The sixth cause of action is stated to be for money “ expended in the payment of fees and charges of the sheriff,” $535, “on or about the 1st of January, 1843.” What fees and charges of the sheriff P Fees and charges of what sheriff ? Fees and charges of the sheriff for what ? If for services, for what services of the sheriff ? In what business ? When rendered ? Where rendered ? To what sheriff paid ?

In the absence of further information on the subject, the defendant can ascertain what may be intended by searching through all past time for all bills and charges of any and all sheriffs, for services in any and all causes : and if he find a payment made, or a debt of the kind, originally due by the defendant or any one else, which may have been paid by the plaintiff on or about the 1st of January, 1843, (this date of the payment being the only matter of description vouchsafed to him,) he will find what may possibly furnish a cine to the payment referred to : and the plaintiff, on the trial, under this pleading, would only he limited to the same ample boundaries in his proofs. This, although less ohjectionahle than the statement of the two preceding causes, is, nevertheless, by no means definite or certain and should be reformed. As to these,the complaint should be made more definite and certain.

And now what is the case at whose door the sins of loose pleading like this are laid, as being authorized by it ? Allen v. Patterson, (3 Selden, 476.) That action was brought to recover for goods sold and delivered, the sum being due on account. The complaint, besides the fact of sale, states, first the place of the sale and delivery, u the city of Buffalo in said county of Erie second, the date of it, the first day of May, 1849 f third, the parties to it, “ by the plaintiff to the defendantfourth, the amount of it, $371.01 f 'and that said sum was then due, that is, that the term of credit (if any) had expired. The items of the account are not given, to be sure, hut the code expressly provides that they need not be given in a pleading.

These are all the material facts necessary to be stated under any system of -pleading of which we have had any practical knowledge ; and they all appear fully in the complaint in that much abused case. It. is true, that they are not stated in the manner and style of averment which might best accord with the taste of a fastidious pleader under our code ; hut they are intelligibly and fully stated, nevertheless, and plainly appear in the report of the case; The pleading would have been more complete, if it had stated whether the price claimed was fixed by contract between the parties, or, in the absence of a contract, was claimed as the value of the goods. This is done in effect, however ; for no contract as to the price is alleged ; and the claim of that sum specified as the price or sum due for them, without stating that there was a contract for it, is, in effect, claiming it as the value, and not as the contract price of them. So it would have been better, perhaps, to state whether the sale was for cash or credit, and if on credit on what credit and when it expired, instead of stating merely that the sum was due: hut the pleading was good without it.

The objection in that case, moreover, was taken by demurrer, and the ground stated was that the complaint did not state facts sufficient to constitute a cause of action.

Defects of pleading, like those urged on this motion, are not properly grounds of demurrer, even when they plainly appear; and the decision in that case, that the pleading was good, on that demurrer, by no means establishes its completeness, tested by a motion of this kind.

Mere indefiniteness and uncertainty are never proper grounds of demurrer under our rules of pleading, and especially are they not grounds for one like this, in its nature a general demurrer. A pleading may state facts sufficient to constitute a cause of action, and still these facts may be stated in a manner very unsatisfactory and not definite or certain—the standard required by our practice.

The mode of pleading adopted in this case, indeed, defective as it manifestly is, might very possibly be held sufficient on a general demurrer, when the question would be, whether the facts stated were in themselves sufficient to constitute a cause of action; and not whether they were stated with sufficient definiteness and certainty to give the defendant all the information he had a right to, and to limit the plaintiff in his proofs to the particular cause of action described, and thus satisfy the requirements of our system of pleading, as to manner and fullness of statement.

. This motion relates to the mode of stating the facts; the demurrer to the sufficiency of the facts stated to constitute a cause of action. Bach remedy has its peculiar duties and functions, and is proper only in its own place, and neither can properly take the place of the other.

That case, therefore, does not decide that the pleading there examined was sufficiently definite and certain; and if it did, it would still fall far short of what is constantly imputed to it as authorizing laxity and vagueness ; for that pleading compared with the one we are considering, or with those it is frequently invoked to sustain, is both definite and certain.

[New York Special Term,

February 2, 1857.

The form of statement is, to be sure, somewhat like that once used in what were called the common counts ; but the facts are stated much more fully, and with reasonable definiteness and certainty. On the subject of the standard of definiteness and certainty required in pleading, that case decides nothing and is not an authority at all; and on the subject of the sufficiency of pleading in matter of substance, which is the only question raised there, it decides nothing new in principle.

Peabody, Justice.]  