Opinion
Opinion, February 2, 1955.
Assumpsit. Pleading. Demurrer. Specifications.
Specifications voluntarily attached to money counts are no part of the count and do not make the count demurrable regardless of the extent to which the action may appear self defeating.
A different rule obtains where specifications are ordered by the court to be filed to supplement a declaration sounding in tort.
ON EXCEPTIONS.
This is an action of assumpsit before the Law Court upon defendant's exceptions to the overruling of a demurrer. Exceptions overruled.
Arthur T. Eaton, for plaintiff.
Goodspeed Goodspeed, for defendant.
SITTING: FELLOWS, C.J., WILLIAMSON, TIRRELL, WEBBER, BELIVEAU, TAPLEY, JJ.
The declaration in this case contained a single count for money had and received. This count was followed by lengthy specifications setting forth the nature of the plaintiff's claim. The specifications disclose that plaintiff entered into a written contract of employment with the defendant for a period of twelve months, for which he was to be paid an annual salary. In addition to salary, at the end of the year he was to receive a percentage bonus based upon net profit from operations. The contract further contained an express provision providing for eligibility for such bonus in event plaintiff's employment should be terminated for any reason or he should become disabled or placed on leave of absence, and such determination of eligibility was left to the sole and final discretion of a bonus committee. The contract further provided that no such bonus, or any part thereof, should become due or payable before the end of the fiscal year. The specifications further disclose that plaintiff became dissatisfied with changing management policies of his employer and as a result became ill and voluntarily terminated his employment before the expiration of the year. The defendant seasonably filed demurrer, reserving the right to plead over in event of an adverse decision. The demurrer was overruled and defendant's exceptions bring the matter before us.
That plaintiff when put to his proof will be limited and confined to the grounds set forth in his specifications as a basis of recovery is undoubted. Gooding v. Morgan, 37 Me. 419; Carson v. Calhoun, 101 Me. 456; Powers v. Rosenbloom, 143 Me. 361. One needs only to read the plaintiff's specifications in the light of such cases as Miller v. Goddard, 34 Me. 102; Veazie v. City of Bangor, 51 Me. 509; Norton v. Soule, 75 Me. 385; Thurston v. Nutter, 125 Me. 411; Levine v. Reynolds, 143 Me. 15, and Preble v. Preble, 115 Me. 26, to recognize that there are difficulties which lie in the way of the plaintiff's ultimate recovery. Whether or not these difficulties are insuperable, we need not determine here. The defenses available to the defendant are not raised by demurrer. In cases in which specifications were not ordered by the court but were voluntarily attached to money counts by the plaintiff, this court has repeatedly held that such specifications are no part of the count and are not vulnerable to demurrer. Dexter v. Copeland, 72 Me. 220; Baxter-Fraternity Co. v. MacGowan, Jr., 132 Me. 83; Bean v. Fuel Co., 124 Me. 102; Carey v. Penney, 127 Me. 304. A different rule obtains where specifications are ordered by the court to be filed by the plaintiff to supplement a declaration sounding in tort. Brown v. Rouillard, 117 Me. 55. The count for money had and received standing alone is in proper form and withstands the demurrer regardless of the extent to which the action may appear to be self-defeating as disclosed by specifications voluntarily attached. At a proper time and in an appropriate manner the defendant may raise the defenses available to it.
The entry will be,
Exceptions overruled.