Opinion
Opinion filed October 7, 1930.
Pleading — What May Be Considered on Demurrer — Agreement of Parties or Counsel Ineffective To Change Rule.
1. Where complaint in action of contract in a single count described two promissory notes by setting forth their dates, amounts, and when payable, and alleged the making of notes by defendant to order of payee and indorsement by latter to plaintiffs, and that notes were due and unpaid, specification filed by plaintiffs in form of bill or statement of account, including copies of two contracts and two separate papers purporting to be copies of notes described in complaint, could not be considered as part of complaint in considering demurrer thereto, though agreed to by parties.
2. On demurrer only what appears in complaint is to be considered.
3. Rule that only what appears in complaint may be considered on demurrer cannot be avoided or varied by agreement of parties or concession of counsel.
ACTION OF CONTRACT with special complaint in single count on two promissory notes. Defendant demurred to complaint. Heard on demurrer by court at the March Term, 1930, Chittenden County, Thompson, J., presiding. Demurrer sustained. The plaintiff excepted, and cause passed to Supreme Court before final judgment. The opinion states the case. Judgment reversed, demurrer overruled, and cause remanded.
Max L. Powell for the plaintiffs.
Stanley C. Wilson and Guy M. Page for the defendants.
Present: POWERS, C.J., SLACK and MOULTON, JJ., and GRAHAM, Supr. J.
The action is contract with special complaint, and comes before us on a demurrer thereto. The complaint in a single count describes two promissory notes by setting forth their dates, amounts, and when payable, and alleges the making of the notes by the defendants to Arthur A. Bishop Company of Boston, Mass., or order, the indorsement of them by the payee to the plaintiffs, and that they are due and unpaid.
The plaintiffs also filed specifications in the form of a bill or statement of account. Attached to and forming a part of the specifications are copies of two contracts, called "Client's Certificate," identical in form except the date, and also two separate papers, which purport to be copies of the notes described in the complaint, and which are identical with the last part of the certificates.
The causes of demurrer are that the complaint declares upon instruments set forth in full in the specifications wherein it appears that they are based upon an executory and contingent consideration and are bilateral contracts importing a present payment and therefore are not negotiable notes, and the indorsement thereof to the plaintiffs carried no title thereto or right to sue thereon in the name of the plaintiffs.
It is apparent that the demurrer attacks the sufficiency of the complaint only as the specifications are treated and considered as a part thereof, and raises no question but what the facts alleged in the complaint, standing alone, are sufficient both in form and substance. By agreement of the parties, the trial court for the purposes of the demurrer treated and considered the specifications as part of the complaint, and by force of the same agreement the record seeks to have them so treated and considered here. This we cannot do. On demurrer only what appears in the complaint is to be considered. State v. Caplan, 100 Vt. 140, 155, 135 A. 705. This rule is not avoided or varied by agreement of parties, or concession of counsel. State v. Caplan, supra; Howard National Bank v. Fidelity Casualty Co., 96 Vt. 462, 468, 121 A. 24; Columbian Granite Co. v. Townsend Co., 74 Vt. 183, 52 A. 432; Douglas Varnum v. Village of Morrisville, 84 Vt. 302, 314, 79 A. 391; Hartland v. Windsor, 29 Vt. 354, 357.
Judgment reversed, demurrer overruled, and cause remanded.