pair the sewer, which he did at an expense of $922.98, which sum, it is alleged, was the reasonable value of the work done. It is further alleged that a claim for this amount was presented to the city council, but disallowed, except in the sum of $125 as a full settlement, which sum was not accepted, and no part of this claim has ever been paid. For a second cause of action the plaintiff refers to the first 13 paragraphs of his first cause of action, and seeks to make them a part of his second cause of action by this reference. The plaintiff then alleges that the existence of said storm sewer through his premises is a permanent injury to his property, and by reason of the facts stated his property has been damaged in the sum of $3,000. He alleges that he presented a claim for this amount to the city council, which was disallowed, and no part of this claim has ever been paid.

Mr. Justice HOLLOWAY delivered the opinion of the court.

3. In his second count or cause of action the plaintiff seeks to recover damages for injury to his property caused by the maintenance of a nuisance. Does the complaint in the second count state facts sufficient to constitute a cause of action? The only averment in this count, aside from the statement that a claim for the damages was presented to the city council and not allowed, is that contained in paragraph 2 of the second count, as follows: “(2) Plaintiff further alleges that the existence of said storm sewer through and over plaintiff's property, and through and under the said building, is a permanent injury to plaintiff's property, by reason of the facts hereinbefore alleged, and plaintiff was and is damaged by reason thereof in the sum of $3,000." Standing alone, confessedly, the allegations of this paragraph did not state any cause of action whatever. But in paragraph 1 it is sought to make all the allegations contained in the first 13 paragraphs of the first cause of action a part of the second cause of action merely by this reference. This cannot be done. McKay v. McDougal, 19 Mont. 488, 48 Pac. 988; Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201.

It is a general rule of pleading that every cause of action must be complete in itself. It must contain all the material and issuable facts which constitute the cause of action em

braced in it, and its defects cannot be supplied from another cause of action. Bliss on Code Pleading, § 121; Pomeroy, Code Remedies, § 575. This rule, however, is generally held not to extend to include matter which is merely introductory or by way of inducement, as, for instance, the description of property, or the particular character in which plaintiff and defendant are parties; nor will it be extended to require a repetition of exhibits, if proper references be made in these several instances.

As was said by this court in Hamilton v. Nelson, 22 Mont. 539, 57 Pac. 146: "The statement of each cause of action is practically a complaint in itself. No interdependence exists; but each cause is in all respects as independent of the other as if it were the sole matter in the complaint."

The cause is remanded to the district court, with directions to dismiss plaintiff's alleged second cause of action.1

Mr. Chief Justice BRANTLY and Mr. Justice SMITH

concur.

1 Accord: Graves v. St. Louis, M. & S. E. Ry. Co. (1908), 133 Mo. App. 91; Gardner v. McWilliams (1902), 42 Ore. 14.

Contra: May incorporate by reference. Ramsey v. Johnson (1897), 7 Wyo. 392; Marietta v. Cleveland, C., C. & St. L. Ry. Co. (1906), 52 Misc. (Ń. Y.), 16; Realty Revenue etc. Co. v. Farm etc. Co. (1900), 79 Minn. 465. In Treweek v. Howard (1895), 105 Cal. 434, this form of incorporation by reference was approved: "The plaintiff here repeats and alleges all the matters and things set forth and alleged in the subdivisions of this second amended complaint, numbered 1, 2, 3, 4, and prays that the same be taken and deemed a part of this cause of action the same as though herein set out at length."'

SECTION 5. STATING SAME CAUSE OF ACTION IN
DIFFERENT FORMS.

HARVEY v. SOUTHERN PACIFIC COMPANY.

Supreme Court of Oregon. 1905.

46 Oregon, 505.

Mr. Chief Justice WOLVERTON delivered the opinion: The first question presented for our determination is one of practice, and arises upon the trial court's allowance of the motion requiring the plaintiff to elect as to which cause of action he would proceed upon at the trial. The complaint, we think, may appropriately be characterized as containing a duplicate statement of distinct grounds of recovery for the same right of action; the right arising from the single transaction in killing plaintiff's animal. The defendant is charged, however, with two culpatory acts in the invasion of plaintiff's right-one for a common-law negligence, and the other for failure to fence, a duty imposed upon it by statute for either one of which plaintiff is accorded a right of action, but the relief is different. Upon the ground first named, the measure of relief is the value of the animal lost, but upon the other it is the value of the animal, enhanced by reasonable attorney's fees for the prosecution of the action (section 5146, B. & C. Comp.), so that there are stated in the complaint two grounds of recovery for the same right; affording the plaintiff different reliefs, according to the cause maintained. He could not have two judgments, however, and a judgment in the one form would preclude a judgment in the other, as the law does not allow double damages for the invasion of the same right. For joining the two grounds or causes of action in the same count, the defendant had its motion before answer to strikę out the complaint because they were not separately stated. B. & C. Comp. § 81. By pleading over the right to interpose such a motion was waived.

There is, however, another exigency to which this motion does not extend. If there be duplicate statements of the same cause of action, or statements of different grounds of recovery for the same right, the defendant is entitled, un

less in exceptional cases, to have the plaintiff elect upon which ground or cause he will proceed to trial, and the motion directed to that purpose may be interposed at any time before the trial. Mr. Pomeroy states the rule as follows: "Since the reformed pleading requires the facts to be averred as they actually took place, it does not, in general, permit a single cause of action to be set forth in two or more different forms or counts, as was the familiar practice at the common law. The rule is undoubtedly settled that, under all ordinary circumstances, the plaintiff who has but one cause of action will not be suffered to spread it upon the record in differing shapes and modes, as though he possessed two or more distinct demands; and, when he does so without special and sufficient reason, he will be compelled, either by a motion before the trial, or by an application and direction at the trial, to select one of these counts, and to abandon the others." Pomeroy, Code Rem. (4th Ed.) §§ 467, *576. Mr. Phillips says: "It may safely be said that the true rule, resting upon principle, and supported by the weight of authority, now is that where a plaintiff has a single right of recovery, that may rest upon one ground or upon another, according to the facts to be shown by the evidence, and he cannot safely foretell the precise nature and limits of the defendant's liability, to be developed upon the trial, he may state his right of action variously, in separate causes of action. This privilege is an exception to the general rule that each separate statement should set out a distinct and independent right of action, and inasmuch as a plurality of statements multiplies the issues, and tends to obscure the real claim which the defendant will have to meet, it is to be indulged only where it is fairly necessary for the protection of the plaintiff, and where it will not mislead or embarrass the defendant in his defense." Phillips, Code Pleading, § 207. See, also, Spaulding v. Saltiel, 18 Colo. 86, 31 Pac. 486; Cramer v. Oppenstein, 16 Colo. 504, 27 Pac. 716; Brown v. Kansas City, etc. Ry. Co., 20 Mo. App. 429; Otis v. Mechanics' Bank, 35 Mo. 128; Cartin v. Railroad Company, 43 S. C. 221, 20 S. E. 979, 49 Am. St. Rep. 829.

The rule is well illustrated by a case from California. The complaint was filed, containing two counts-one for services performed on a promise to pay therefor a definite sum, and the other for the same services at their reasonable

worth-and, upon a motion to require plaintiff to elect, the Supreme Court, sustaining the ruling of the trial court, said that the plaintiff may set out the facts "in two separate forms when there is a fair and reasonable doubt of his ability to safely plead them in one mode only." Wilson v. Smith, 61 Cal. 209, 210. So, in Wisconsin, Whitney v. Chicago, etc. Ry. Co., 27 Wis. 327, where the court for a like reason held it to be allowable for the plaintiff to charge the defendant on separate grounds in the capacity of a carrier and a warehouseman. So it was in Bishop v. Chicago & Northwestern R. Co., 67 Wis. 610, 616, 31 N. W. 219, the court saying: "Since it is no longer necessary in order to protect the rights of the plaintiff, that he should set forth in different counts the same cause of actionvariances between the allegations and the proofs being disregarded unless they actually mislead the adverse party to his prejudice upon the merits-the practice of so doing is disapproved of, because it is not in harmony with the spirit of the code.' An exception to this method of pleading is recognized by this court in a case when the plaintiff cannot know beforehand the precise nature and limits of the defendant's liability to him, and in such case it is permissible to allow the plaintiff to state his cause of action differently in different counts."

The practice, however, of allowing or disallowing a motion of the kind, is a matter largely within the sound discretion of the trial court. Manders v. Craft, 3 Colo. App. 236; Carlton v. Pierce, 1 Allen, 26; Hawley v. Wilkinson, 18 Minn. 525 (Gil. 468); Plummer v. Mold, 22 Minn. 15; Wagner v. Nagel, 33 Minn. 348, 23 N. W. 308; Kerr v. Hays, 35 N. Y. 331.

These considerations affirm the judgment of the trial court, and it is so ordered.1

1 Accord:

Cripple Creek Mining Co. v. Brabant (1906), 37 Colo. 423; Spottswood v. Morris (1904), 10 Idaho, 129; Whitney v. Chicago & Northwestern Ry. Co. (1870), 27 Wis. 327; Astin v. Chicago, Mil. & St. P. Ry. Co. (1910), 143 Wis. 477; Waechter v. St. Louis & M. R. R. R. Co. (1905), 113 Mo. App. 270; Holm v. Chicago, Milwaukee & Puget Sound Ry. Co. (1910), 59 Wash. 293; Darknell v. Coeur D'Alene & St. Joe Transp. Co. (1910), 18 Idaho, 61; Ross v. Carr (1909), 15 New Mex. 17; Neuman v. Grant (1907), 36 Mont. 77; Willard v. Carrigan (1902), 8 Ariz. 70. Compare Gabrielson v. Hague Box & Lumber Co. (1907), 55 Wash. 342.

The matter is one largely within the discretion of the court. Neuman v. Grant (1907), 36 Mont. 77; Manders v. Craft (1893), 3 Colo. App. 236; Possell v. Smith (1907), 39 Colo. 127.