tition shall contain, among other things, "a demand for the relief to which the plaintiff may suppose himself entitled," and that, "if the recovery of money be demanded, the amount thereof shall be stated, or such facts as will enable the defendant and the court to ascertain the amount demanded." Rev. St. 1889, § 2039.

It is obvious that, upon many states of facts presented to a court for action, divers remedies may be applicable, some strictly legal, others, perhaps, equitable in nature. It would be a departure from the true spirit and meaning of the code to require of plaintiff "a plain and concise statement of the facts constituting his cause of action," without requiring at some stage of the case a plain statement of the judicial action demanded thereon, for the information of the defendant and of the court.

This is especially true where, as in Missouri, by the terms of the constitution, (Const. 1875, art. 2, § 28,) the right of trial by jury is preserved inviolable in ordinary cases, "for the recovery of money only, or of specific real or personal property," (Rev. St. 1889. § 2131,) usually termed "actions at law," whereas suits formerly cognizable in chancery may be properly tried without a jury.

With us it is therefore often of importance to all concerned to know what relief plaintiff demands in order to determine the proper constitutional mode of trial. On this account it is sometimes necessary, in the practical administration of justice, to recur to the inherent distinctions between legal and equitable rights and remedies, and to insist that parties asking aid of the court state the nature of the relief desired, as well as the facts on which they demand it.

It is the duty of all courts to so construe the code as "to secure parties from being misled." Id. § 2117. But it is obvious that parties would often be misled as to the real nature and issues of the case if an ordinary judgment at law might be rendered by the court on a petition praying only equitable relief, without other notice of such legal demand than the supposed case in equity incidentally disclosed.

The code no doubt intended to abolish many distinctions, with respect to form of statement, between actions at law and suits in equity, and to empower the same court, if necessary, in the same proceeding, to adjudicate legal

and equitable rights, and apply thereto legal or equitable remedies; but it does not sanction, and should not be so interpreted as to encourage, such vagueness and uncertainty in the petition as would leave the adverse party and the court in doubt as to the relief demanded, and hence as to the mode of trial, and as to the issues which would be material and decisive in it. Humphreys v. Milling Co., 98 Mo. 542, (1889.)

Moreover, we review in this court only such objections to proceedings as have been expressly decided by the trial court. Rev. St. 1889, § 2302.

Parties who wish to change or enlarge their demand for relief should do so by amendment or otherwise while the cause is before the trial court, at least in those instances where the case goes off upon demurrer, for the general provision permitting the court to grant "any relief consistent with the case made by the plaintiff and embraced within the issues" (Id. § 2216) can have no proper application where final judgment for defendant has been reached on demurrer. In that event, the prayer for general relief, supplemental to one for specific performance, cannot, in view of section 2039, Id., be construed as a prayer for a money judgment.

The judgment of the trial court was correct, and is affirmed, with the concurrence of all the members of the court.1

1 Purpose of Prayer. In Cumberland Telephone and Telegraph Co. v. City of Lickman (1908), 129 Ky. 220, the court said: "The prayer for relief serves a twofold purpose: 1. It defines specifically the legal right claimed by the plaintiff, by which the court will be guided in granting or refusing the relief; for while it may not be granted, as not being warranted, supposing the plaintiff has mistaken his right, the court will not voluntarily grant him some other relief which the facts might have entitled him to, but which the plaintiff may not desire, and the court would not in such case be warranted in thrusting it upon him. 2. The other feature of the prayer is to apprise the defendant of what is demanded of him; for the same facts may authorize any of several remedies. If the defendant is informed that only a particular remedy is asked, he may be willing to concede that. Hence he may make no defense. It would be most unjust to allow the plaintiff to subsequently have, or the court to grant, an unclaimed remedy to the defendant's great suprise. But, as more than one remedy may be authorized by the same facts, and as particularly in equity it rests in the sound discretion of the court sometimes as to which of them shall be granted, the plaintiff ought not to be put to the jeopardy of losing his case because he misjudges the temper of the judge. Hence, the code allows, as the common law did, a prayer for alternative relief. Newman's Pl. and Pr., section 356. In such a prayer the court and defendant are advised of the plaintiff's claim of right, and of the specific redress he asks. The defendant is not taken unaware if he confesses

the petition, when the court decides to grant either alternative of the prayer, as he was informed such was specifically demanded.''

It is sometimes provided by statute that the relief granted to the plaintiff, if there be no answer, cannot exceed that which is demanded in the complaint, but in other cases the plaintiff may be given any relief to which the facts alleged and proved may entitle him. Perce v. Butte Elec. Ry. Co. (1910), 41 Mont. 304; Johnson v. Polhemus (1893), 99 Cal. 240.

SECTION 11. EXHIBITS.

CAVE v. GILL.

Supreme Court of South Carolina. 1901.

59 South Carolina, 256.

February 15, 1901. The opinion of the court was delivered by

Mr. Justice GARY: The appeal herein is from an order overruling a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The following is a copy of the complaint, to wit:

"The complaint of the above-named complainant respectfully shows that the defendant above named is indebted to the plaintiff, for brick sold and delivered by the plaintiff to the defendant, in the sum of six hundred and five dollars and forty-five cents, as appears by itemized account verified, hereunto annexed as a part of the complaint, and refuses to pay same. Wherefore plaintiff demands judgment against the defendant for six hundred and five dollars and forty-five cents."

The following is the exhibit annexed to the complaint:

The appellant assigns error on the part of his honor, the presiding judge, in overruling the demurrer, “for the reason that no contract or agreement is alleged, and no statement of the value of the brick alleged to have been sold is made; that the complaint alleges conclusions of law, and the facts are not stated; that the complaint implies an action on contract, and the annexed exhibit does. not supply necessary allegations of facts omitted and not set out in the complaint."

The authorities are not uniform as to whether an instrument of writing annexed to the complaint, and alleged

to be part thereof, can be considered in determining the sufficiency of the allegations of the complaint when a demurrer is interposed. 6 Enc. Pl. & Prac. p. 299, note. In 8 Enc. Pl. & Prac. p. 740, the rule is thus stated: "In the absence of a statute, the annexing and filing of papers as exhibits to a pleading does not make them a part thereof, and they cannot be referred to for the purpose of supplying the omission of a material allegation curing a fatal defect. ***" In the case of Burkett v. Griffith (Cal.) 27 Pac. 527, 13 L. R. A. 707, the court says: "Matters of substance must be alleged in direct terms, and not by way of recital or reference,-much less by exhibits merely attached to the pleading. Whatever is an essential element to a cause of action must be presented by a direct averment, and cannot be left to an inference to be drawn from the construction of a document attached to the complaint,' -citing Mayor, etc., v. Signoret, 50 Cal. 298. The foregoing is a correct statement, in general terms, of the principle governing such cases. Resort, however, may be had to an exhibit for the purpose of making the allegations of the complaint definite and certain. It may be made "in aid of or in elucidation of the allegations of a pleading, but not to supply entirely the omission of allegations necessary to present a good cause of action." 8 Enc. Pl. & Prac. p. 741, note. The exhibit will not, therefore, be considered in determining whether the allegations of the complaint were sufficient to constitute a cause of action.

The complaint substantially alleges that the plaintiff sold and delivered to the defendant a certain quantity of brick, and that the defendant refuses to pay the amount now due.

The prayer of the complaint is for $605.45, the alleged amount of the indebtedness. The alleged sale implies a consideration. Sires v. Sires, 43 S. C. 272, 21 S. E. 115. And, if it was not alleged with definiteness and certainty, the proper remedy was by a motion to that effect, but not by demurrer. The same may be said as to the number of brick delivered. The complaint, when considered apart from the exhibit, is indefinite and uncertain; but, as we have said, this does not render it subject to a demurrer. This defect, however, is cured when the complaint is construed in connection with the exhibit. It is

the judgment of this court that the judgment of the circuit court be affirmed.1

1 Accord. Realty Revenue Guaranty Co. v. Farm Publishing Co. (1900), 79 Minn. 465; Hickory County v. Fugate (1898), 143 Mo. 71; Estate of Cook (1902), 137 Cal. 184.

In Union Sewer Pipe Co. v. Olson (1901), 82 Minn. 187, it was said that exhibits were not to be taken as substantive allegations of facts "unless the pleading be so framed as to show an intention on the part of the pleader to make them such.'

STEPHENS v. AMERICAN FIRE INSURANCE COM

PANY.

Supreme Court of Utah. 1896.

14 Utah, 265.

BARTCH, J.: This is a suit on a fire insurance policy to recover for loss occasioned by fire. The defendant interposed a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and judgment entered in favor of the plaintiff for $938 and costs. This appeal was prosecuted from the order overruling the demurrer and from the judgment.

The complaint, after alleging the corporate existence of the defendant, avers that the plaintiff, at the time of its insurance and destruction by fire, was the owner of the property in question; that said property was situated on Washington avenue, in Ogden city, Utah Territory; that on the 30th of November, 1895, in consideration of the payment of a premium of $17.50, the defendant, by its general agent, "made their policy of insurance in writing, which is hereto attached, and made a part of this complaint;" that on December 15, 1895, the insured property was greatly damaged, and in part destroyed, by fire, to the plaintiff's loss thereby in the sum of $1,200; that between the 15th and 25th of December, 1895, the plaintiff furnished proof of the destruction and loss, and otherwise performed all of the conditions of said policy on her part; and that on February 28, 1896, defendant refused to pay

C. P.-23