One who seeks to enforce a contract for land conveyance in a court of equity must show such a state of facts that equity would grant the relief sought. Harney v. Helgren, 322 Ill. 126, 152 N. E. 481.

Bill for specific performance must set up facts from which the court may be informed that the contract is fair and just and not unconscionable. 1500 Sherman Ave. Bldg. Corp. v. Perkovic, 255 Ill. App. 518.

Bill for specific performance of a land contract dismissed for lack of mutuality and insufficiency of the contract attached to the bill. Cutler v. Weibel, 339 Ill. 62, 170 N. E. 705. Complaint for specific performance of land contract dismissed, the bill failing to show that complainant was entitled to equitable relief. Klimowicz v. Colnon, 331 Ill. 140, 162 N. E. 112. 226.

Title to instrument.

Allegation of title to non-negotiable instrument held not uncertain. State Bank of Rock Island v. Pope, 179 Ill. App. 282.

un

to enable a person of common derstanding to know what is intended. Third. Where the complaint contains more than one cause of action, each shall be distinctly stated in a separate paragraph, and numbered. Fourth. A demand of the relief to which the plaintiff may suppose himself entitled. If the recovery of money be demanded, the amount thereof shall be stated. 2 Burns Ind. Stats. Ann. (1933) 2-1004.

2 Burns Ind. Stats. Ann. (1933) 2-1057 follows Deering's Cal. Code of Civ. Proc. (1931) 580.

The complaint should state the facts constituting the cause of action directly, concisely and in plain language, so as to meet the comprehension of persons of common understanding; more liberal rules are applied in construing pleading under the Code than those prescribed at common law. Domestic Block Coal Co. v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99.

Provision does not require more than is reasonably necessary to inform the defendant fully and distinctly of what he is called upon to meet. Haskell & Barker Car Co. v. Trzop, 190 Ind. 35, 128 N. E. 401. 232.

Facts, not conclusions. Pleadings should state facts, rather than conclusions, legal propositions and matters of judicial notice. Foland v. Frankton, 142 Ind. 546, 41 N. E. 1031; Daily v. State, 171 Ind. 646, 87 N. E. 4.

Averment that a party has an equity in property described, without describing the nature of the equity, held mere conclusion. National Glue Co. v. Thrash, 76 Ind. App. 381, 132 N. E. 311.

of an act, it is sufficient to allege that the act was negligently done, without stating the particular acts constituting the negligence. Louisville, N. A. & C. Ry. Co. v. Berkey, 136 Ind. 181, 35 N. E. 3.

"A general allegation of negligence is sufficient to repel a demurrer for want of facts. This means, not that the pleading is good by charging that the plaintiff was injured by the negligence of the defendant,' but that it is sufficient if the act stated as the cause of the injury is alleged to have been ‘negligently' done." Cleveland, C., C. & St. L. R. Co. v. Berry, 152 Ind. 607, 53 N. E. 415, 46 L. R. A. 33.

Details of the negligence complained of need not be alleged in order to withstand demurrer for insufficiency. Louisville, N. A. & C. Ry. Co. v. Cauley, 119 Ind. 142, 21 N. E. 546.

In Pennsylvania R. Co. v. Hemmer, 206 Ind. 311, 186 N. E. 285, the complaint alleged, in substance, that the defendant maintained and used a side track parallel with and a few feet east of the main line of defendant's railroad which ran along Indianapolis avenue and crossed Tipton street in the city of Seymour; that by an ordinance of the city of Seymour it was made unlawful to operate any locomotive, cars, or cars within said city at a speed in excess of eight miles per hour; that on the day named plaintiff's deceased was on "Tipton street east of defendant's tracks, on foot and desiring to travel westward over said crossing, but the same was obstructed by a long freight train moving northward on the main track, and he walked to a point in said street near said moving train and about the middle

of defendant's side track and while waiting at said point for said freight train to pass and clear said crossing, defendant carelessly and negligently ran a locomotive northward

upon and along said side track and against, upon and over said Charles A. Hemmer and thereby so injured him and that he then and there died of such injuries." The defendant's negligence was specifically alleged to consist of (a) running the locomotive at a speed greater than 8 miles per hour, to-wit: 12 miles per hour; (b) running the locomotive over the Tipton Street crossing without having sounded the whistle as it approached the crossing; (c) failure. to ring the bell on the locomotive; (d) failure of the engineer on the locomotive to keep a lookout for persons and vehicles using and intending to use the crossing and not seeing plaintiff's decedent before striking him; and (e) running the locomotive along the side track when it "could not be heard because of the noise from said freight train or so closely following said freight train as needlessly to endanger life and property on said crossing." The trial court overruled appellant's motion to make the complaint more specific and appellant's demurrer to the complaint, and issue was joined by appellant's answer in general denial. Trial by jury resulted in a verdict for appellee. Appellant's motion for new trial was overruled, and judgment was rendered upon the verdict. Appellant assigns as error the overruling of its motion to make more specific its demurrer and its motion for a new trial.

The court said: "We think the trial court committed no error in overruling the appellant's motion to make more specific. . . . It has often been held by this court that a general charge of negligence is sufficient as against a demurrer, but, defendant desires a more specific charge, he is entitled to it upon motion, if made in due season. But the rule has its limitations. A plaintiff is required to charge his cause of action in direct and certain

if a

terms, yet he is not required to go into an elaboration of details beyond what is reasonably necessary to fully and distinctly inform the defendant of what he is called upon to meet. Pittsburgh, etc., Ry. Co. v. Simons. (1907), 168 Ind. 333, 79 N. E. 911, 913. Appellant was entitled to have 'a statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.' Section 343, Burns' 1914. . . . But this rule does not require more than is reasonably necessary to fully and distinctly inform the defendant of what he is called upon to meet. Haskell & Barker Car Co. v. Trzop (1920), 190 Ind. 35, 128 N. E. 401, 402."

240.

Theory of the pleading. As to theory of the pleading, see also notes to Rule 2.

Complaint must proceed on some definite theory which must be adhered to throughout trial and upon appeal, and plaintiff's evidence should sustain cause of action and verdict upon the theory of the complaint. Indianapolis Real Estate Board v. Willson, 98 Ind. App. 72, 187 N. E. 400.

The usual rule is that it is the general scope and tenor of the pleading that determines its theory, and not some isolated or detached allegations. Wood v. Pogue, Ind. 5 N. E. (2d) 1011.

241.

Sufficiency on demurrer. Complaint is sufficient on demurrer if necessary allegations can be fairly gathered from all averments. Illinois Pipe Line Co. v. Coffman, 98 Ind. App. 419, 188 N. E. 217.

In determining the theory of a pleading, the prayer thereof may be advisory, but it will not control the theory outlined by the general and special allegations showing the relief sought by the pleader. Stephen v. State, 207 Ind. 388, 193 N. E. 375.

In the absence of an answer the relief granted cannot exceed the relief demanded, but if the defendant answer, the court may grant such relief as the case may justify, whether specially demanded or not. Bozarth v. McGillicuddy, 19 Ind. App. 26, 47 N. E. 397, 48 N. E. 1042.

Where the court has jurisdiction of the person and the subjectmatter, the fact that the judgment rendered was for a greater amount than was alleged by the affidavit in attachment proceedings to be due does not make the judgment void, and it cannot be enjoined. GumElastic Roofing Co. v. Mexico Pub. Co., 140 Ind. 158, 39 N. E. 443.

246.

247.

Cases.

Petition in general.

The petition must be sufficiently full in its statements of the facts to enable the court upon an admission, or upon the verdict of a jury, to render judgment thereon, or grant the relief prayed, and every fact must be alleged which is necessary to show a right of action (Leas v. White, 15 Iowa 187; McCaull v. Bruner, 91 Iowa 214, 59 N. W. 37; Box v. Chicago, R. I. & P. R. Co., 107 Iowa 660, 78 N. W. 694; McCrary v. Lake City Elec. Light Co., 139 Iowa 548, 117 N. W. 964), and if the right of action be a statutory one it must come under the statute. Thus, in a statutory proceeding for a commission to establish boundaries the petition should state the facts in dispute sufficiently to enable the

court to determine the nature of the controversy and that it is one within the statute. Smith v. Scoles, 65 Iowa 733, 23 N. W. 146. If an essential and material fact is omitted the petition does not state a good cause of action. Box v. Chicago, R. I. & P. R. Co., 107 Iowa 660, 78 N. W. 694.

249.

Facts.

Necessity of express

averment.

Co. v. Berkey, 100 Iowa 136, 69 N. W. 434; De Lay v. Carney Bros., 100 Iowa 687, 69 N. W. 1053; Sac County v. Hobbs, 72 Iowa 69, 33 N. W. 368), and they should be ultimate facts, not the evidence which will be relied upon (Brown v. Kingsley, 38 Iowa 220; Davenport Gas Light & Coke Co. v. Davenport, 15 Iowa 6; Eggleston v. Council Bluffs Ins. Co., 65 Iowa 308, 21 N. W. 652; Barbee v. Hamilton, 67 Iowa 417, 25 N. W. 684; Robinson & Co. v. Berkey, 100 Iowa 136, 69 N. W. 434; Robinson v. Berkey, 111 Iowa 550, 82 N. W. 972; Johnson v. Chicago, R. I. & P. R. Co., 107 Iowa 1, 77 N. W. 476; Tisdale v. Major, 106 Iowa 1, 75 N. W. 663; Snyder v. Ft. Madison St. R. Co., 105 Iowa 284, 75 N. W. 179; Green v. Equitable Mut. Life & Endowment Ass'n, 105 Iowa 628, 75 N. W. 635; Leasure v. Boie, 142 Iowa 284, 120 N. W. 643; Roddy v. Gazette Co., 163 Iowa 416, 144 N. W. 1009; Riley v. Inter-State Business Men's Acc. Ass'n, 177 Iowa 449, 159 N. W. 203; Roberts v. Morse, 190 Iowa 1344, 181 N. W. 678; Barks v. Kleyne, 198 Iowa 793, 200 N. W. 439).

The practice of pleading evidence is emphatically condemned. Davenport Gas Light & Coke Co. v. City of Davenport, 15 Iowa 6.

251.

abro

- Technical words gated. These should be stated in ordinary language. The purpose of the code seems to be to abrogate the use of technical words and forms of expression in pleadings. Davenport Gas Light & Coke Co. v. Davenport. 15 Iowa 6; Woolsey v. Williams, 34 Iowa 413; Brown v. Kingsley, 38 Iowa 220; Ingle v. Jones, 43 Iowa 286; Byington v. Robertson, 17 Iowa 562; McConnoughey v. Weider, 2 Iowa 407; Lumbert v. Palmer, 29 Iowa 104; Pfiffner v. Krapfel, 28 Iowa 27; Robinson & Co. v. Berkey,

son v. Berkey, 111 Iowa 550, 82 N. W. 972; Chicago, B. & Q. R. Co. v. Porter, 72 Iowa 426, 34 N. W. 286; De Lay v. Carney Bros., 100 Iowa 687, 69 N. W. 1153.

Generally, legal inferences and conclusions should not be pleaded, and may be stricken on motion. Lane v. Burlington & S. W. R. Co., 52 Iowa 18, 2 N. W. 531; Cooper v. French, 52 Iowa 531, 3 N. W. 538; Burt v. Decker, 64 Iowa 106, 19 N. W. 873; Koon v. Tramel, 71 Iowa 132, 32 N. W. 243; Sac County v. Hobbs, 72 Iowa 69, 33 N. W. 368; Luse v. Des Moines, 22 Iowa 590; Plympton v. Sapp, 55 Iowa 195, 7 N. W. 498; Brown v. Kingsley, 38 Iowa 220; Boggs v. Chicago, B. & Q. R. Co., 54 Iowa 435, 6 N. W. 744; Kendig v. Marble, 55 Iowa 386, 7 N. W. 630; Grinde v. Milwaukee & St. P. R. Co., 42 Iowa 376; Seeley v. Seeley-Howe-Le Van Co., 130 Iowa 626, 105 N. W. 380; Conway Bros. v. Iowa Hardware Mut. Ins. Ass'n, 190 Iowa 1369, 181 N. W. 768; Van Scoy v. National Fire Ins. Co., 191 Iowa 1318, 184 N. W. 306.

Alleging that defendant was plaintiff's agent is a conclusion (Heiman v. Felder, 178 Iowa 740, 160 N. W. 234); also allegation that an agency was "permitted." Teagar v. First Nat. Bank of Woodbine, 198 Iowa 107, 199 N. W. 250. But propositions which contain the ultimate results of evidence may properly be pleaded. Davenport Gas Light & Coke Co. v. City of Davenport, 15 Iowa 6. A pleading stating that a city had fixed an established grade was held to state an ultimate fact. Luse v. Des Moines, 22 Iowa 590. 254. Custom, waiver, estoppel, duress.

Various facts like a custom (Lind