217

it was executed by defendant,216 for such is the legal effect of the act the manner of the execution is evidence; and so, in a sale and delivery to the defendants, where they purchased by an agent. Also, in an action for enticing a wife, the plaintiff alleges that the defendant procured, persuaded and enticed, without stating what he said to that end; 218 and in an action by a railroad passenger, in pleading the contract to carry, etc., he should state, in general terms, that the defendant contracted, etc., and the consideration, and not that the company or its agent sold the plaintiff a passenger ticket, etc.-for that is but evidence of the contract. In relying upon irregularities in a tax sale, the pleader should not say that he has searched the records in the proper offices, and can find no evidence of proper proceedings required, but that such proceedings were not had.219

In most of the states, and in all that have adopted the new procedure, the fictitious action of ejectment has been abolished, although the statutory action is sometimes as loose as the old. When not colored by the fictitious action, the plaintiff must show his title -that is, he must state the facts upon which he bases his right to possession. In such case (and this statement is required in some of the states) 220 he should state, generally, the nature of his title -as, that he is the owner in fee simple, of a term, so stating it as to show that it has not expired, or that he has an estate for life, as the case may be. It may be that he claims by conveyance from one who took by inheritance, whose ancestor purchased at a sale, upon execution, against one who might have been a remote grantee from the common source of title. Each link in the chain may be very important as evidence, but its statement would be out of place in a pleading.221

216 See v. Cox, 16 Mo. 166; Weide v. Porter, 22 Minn. 429; Sander v. Anderson, 21 Mo. 402. Contra, St. John v. Griffith, 1 Abb. Pr. 39.

217 Sherman v. New York Cent. R. Co., 22 Barb. 239.

218 1 Chit. Pl. (Ed. 1867) 391.

219 Rogers v. City of Milwaukee, 13 Wis. 610.

220 See post, as to pleading title, §§ 222-226.

221 For instances where the pleading of evidence is condemned, see Page v. Boyd, 11 How. Pr. 415; Allen v. Patterson, 7 N. Y. 476.

(326)

§ 208. Difficulties in applying the Rule.

222

The rule now under consideration, especially in connection with the one against pleading legal conclusions, will sometimes embarrass the pleader. It is not always easy to distinguish the issuable fact to be pleaded. In the cases which have been supposed, the fact alleged is, in a sense, a conclusion of law from the evidence; the legal effect of that evidence is matter of law. Mr. Van Santvoord, in his work upon the New York Code (pages 244, 245) thus quotes Mr. Selden, of that state: "Facts are to be stated; but what are facts? Are they pure matter of fact unmixed with any element of law? No declaration or complaint was ever so drawn. If a plaintiff states his title to, or ownership of, property in the usual form, is this the statement of pure facts? Clearly, not. It comes much nearer being a statement of a mere matter of lawthat is of a legal right depending upon facts not stated. Again: the common averment that the defendant executed, or entered into, a contract is liable to the same criticism; or even that he signed, sealed, and delivered it. The delivery may have been actual, or it may have been constructive merely. What amounts to a delivery is a question of law. It is obvious, therefore, that some latitude of interpretation is to be given to the term 'facts,' when used in a rule of pleading. It must of necessity embrace a class of mixed facts, in which more or less of legal inference is admitted. A contrary construction would tend to intolerable prolixity. To determine precisely how great an infusion of law will be allowed to enter into the composition of a pleadable fact, precedent and analogy are our only guides."

$209. Continued.

The foregoing statement is substantially correct, and to say that the ultimate, the issuable fact to be stated, is a conclusion of fact and not of law, does not fully distinguish it from legal conclusions. Many mere inferences condemned as conclusions of law, are inferences of fact. One sues as the assignee of a chose in ac

222 In Dows v. Hotchkiss, 10 N. Y. Leg. Obs. 281.

tion; it is not good pleading to say that it is, or has become the property of the plaintiff; the fact that makes it his property should be stated. Still the plaintiff's property in the thing is as much a fact as though it were an ordinary chattel. But because both are conclusions, whether we call them logical or legal, it does not follow that they are the same. If the inference is matter of law, it cannot be stated for the reason that law is never pleaded; but if it be an inference of fact there is more room for doubt. There is, however, a difference between the issuable, the ultimate, fact to be pleaded, which difference may not be shown by definitions, but will be seen in examining cases. We may not be able to so describe the resembling features of two persons, that a stranger will distinguish them, yet they may be easily seen not to be the

same.

RULE VI. Conclusions of Law should not be pleaded.223

§ 210. To be distinguished from issuable Facts. The rule is given in this connection, to show as far as we can. the difference between an admissible conclusion of fact and a conclusion of law. The facts which are but the logical conclusion from other facts must, as we have seen, be stated; the facts from which they are inferred are but evidence; but a conclusion of law, although of a fact, is not allowed. We may not be able to so formulate a definition or statement that shall describe what is meant by such a conclusion as to distinguish it from an issuable fact; yet, in inspecting a pleading, it is seldom diflicult to make the distinction.

223 [Gerrity v. Brady, 44 Ill. App. 203; Maness v. Henry (Ala.) 11 South. 410. A statement that the plaintiff was in the act of getting on the car "as a passenger, as he had a right to do," is a conclusion of law. North Birmingham St. Ry. Co. v. Liddicoat (Ala.) 13 South. 18; Swanholm v. Reeser, 31 Pac. 804, 2 Idaho, 1167; Baker-Boyer Nat. Bank v. Hughson, 5 Wash. 100, 31 Pac. 423. Where, in an action to recover the purchase money of goods sold and delivered, the answer denies that defendants are indebted on the alleged cause of action set forth in the complaint, but does not otherwise deny the complaint, the answer is but a conclusion of law, and the defendants' promise to pay is admitted. Lamb v. Hirschberg (Com. Pl. N. Y.) 20 N. Y. Supp. 678. See, further, Dixon Co. v. Field, 111 U. S. 83, 4 Sup. Ct. 315.]

Thus, in an action for breach of contract, the title and the right to redress, as between the parties to it, sufficiently appear from its description, but, if the action be by an assignee or indorsee, the agreement shows the right to be in another, and the court should be advised in respect to that of the plaintiff; that is, the plaintiff should state the facts that give him title, as the assignment, the indorsement, etc. To say that a right, a chose in action, once belonging to A., is now the property of the plaintiff, is a conclusion of law.224 In suing for the conversion of a chattel proper, its description shows no right in another, ownership is all that can be averred, to require the plaintiff to explain on paper how he came to be the owner, would be ridiculous unless he sues in a representative capacity, in which case the facts must be stated which show his right.225

In an action in respect to land, when the right depends upon title, more particularity is required. As to chattels, ownership is absolute, but no one has an absolute title to land, only an estate or interest in it; 226 hence the plaintiff in stating his title should show what that interest is, as, that he is the owner in fee simple, or has a fee simple estate in it, or has a life estate, or is the owner of a term, so describing it as to show his title. A fee simple being the highest interest one can have in land, for the claimant to state it, suffices without giving probative facts going to establish it. But any less estate is founded on the fee simple; to state the less estate, admits a higher one in some other person, and the plaintiff should so set out his title as to show a right consistent with such higher estate.2

227

When a plaintiff bases his demand upon the acts of defendant he must state the general fact, and the rule as to particularity will depend upon the character of the act. If founded upon a writing, the pleading should show that the defendant executed it; further particulars in respect to its execution, merely probative, need not be stated. If he would recover for a fraud, the deceit and false representations should be stated, not the details which show

224 Adams v. Holley, 12 How. Pr. 326.

225 See post, §§ 261, 267.

226 Tied. Real Prop. § 19; Williams, Real Prop. p. 17.

221 Post, § 222, etc.

the deceit; the latter are but probative facts, while a general allegation of fraud is a conclusion of law.228 So of duress; to say that the plaintiff was compelled to pay a sum of money is a conclusion of law,229 while to say that he was threatened by the defendant with death or great bodily injury and in fear of same, paid, etc., or that he was illegally imprisoned by him and to procure a release, paid, etc., would doubtless be held to be a statement of the issuable fact without giving the particulars.

§ 211. Fraud a conclusion of Law.

In alleging fraud, it will not suffice to say that the party fraudulently procured, or fraudulently induced, or fraudulently did this or that, or that he committed or was guilty of fraud; the facts which constitute the fraud must be stated. Fraud is a conclusion of law.23 A statement that defendants in "concert, did by connivance, conspiracy and combination, beat and defraud the plaintiff out of," etc., does not state the facts that constituted the cause of action.231 It does not appear what they did; the legal conclusion-an epithet only-is applied to their acts without knowing what they were.

Fraud is not a fact; it is a name given by law to certain facts, to certain conduct of the accused party. The fact may be misrepresentation, deceit, specificially stated, and the term fraud is the legal epithet applied to such facts; it is not the fact, not the thing done, but only a conclusion from the thing done. The term fraud or misrepresentation, may not be used at all, if the facts appear.232 We say one is guilty of fraud because he has done so and so, as we say one is guilty of larceny or of murder because he

228 See next section.

229 Commercial Bank v. City of Rochester, 41 Barb. 341, affirmed 41 N. Y. 619.

In

230 Kerr, Fraud & M. (Bump, Am. Ed.) 365, 366. This has never been doubted as to the declaration or petition, although it has been incorrectly said, that, in the answer or reply the legal conclusion will be permitted. Edgell v. Sigerson, 20 Mo. 494, an answer alleging fraud generally was sustained; so in Evans v. Stone, 80 Ky. 78. See note 1, § 339.

231 Cohn v. Goldman, 76 N. Y. 284.

232 Hess v. Young, 59 Ind. 379.