Milligan v. Keyser

Citations

• 52 Fla. 331

Syllabus

<p>1. A declaration in an action at law should alleged distinctly every fact that is essential to the plaintiff’s right of action.</p> <p>2. Where an action is brought to recover damages for the breach of an executory contract containing mutual undertakings and those on the part of the plaintiff are to be performed before the defendants are to perform their part, the declaration should allege a performance by the plaintiffs .of their undertakings, or a sufficient excuse for non-performance, and an allegation that it was the duty of the defendants under said contract to perform their part, without stating the facts imposing such duty, is not equivalent to an allegation that the plaintiffs had performed their part.</p> <p>3. The statute and rule which require the contract upon which suit was brought, or a copy thereof, to be filed with the declaration, do not make the contract so filed a part of the pleading, and a copy of the contract annexed as an exhibit to a declaration can not on demurrer be used to supply an essential allegation of fact omitted from the declaration.</p> <p>4. In an action for the breach of a contract to buy and move lumber cut “in accordance with sizes and prices in said contract stated,” in the absence of an allegation that the plaintiffs cut the lumber “in accordance with the sizes and prices in said contract stated,” and of a legal excuse for not doing so, and there is no general allegation of performance by the plaintiffs, the declaraation is demurrable.</p> <p>5. In an action for breach of contract, an allegation in a count of the declaration of duty and obligation of the defendants under the contract, is a mere conclusion, and where the court does not contain allegations of fact showing the duty and obligation it is demurrable.</p> <p>6. In an action for breach of contract allegations as to what the parties contemplated and intended can not vary the terms of the' contract sued on.</p> <p>7. In an action for breach of a contract to buy and