MANITOBA FISH CO. v. BOOTH, 109 F. 594

WOODS, Circuit Judge, after mailing the foregoing statement, delivered the opinion of the court. The first and second specifications of error, if otherwise good, are not available, because, by amending any count of the declaration, the plaintiff lost all right to question a previous ruling upon demurrer thereto. If any count remained unamended, the record should have been made to show the fact, and error should have been specified separately upon the ruling thereon; or, if more than one, then upon the ruling on each severally.

On the record before us it is not an easy task to locate or determine the context of the several amendments to the declaration. If counsel are willing to risk the presentation of questions oí pleading upon a record so uncertain or confused, the briefs, at least, should supply the defect.

The fourth, fifth, and sixth specifications are in no respect better than the third, and, if they were sufficiently definite, evidently present nothing not involved in the third specification; and that might be disregarded, because, predicated as it is of a ruling upon a demurrer to a declaration containing several counts, it embraces necessarily as many questions as counts, unless the counts, or two or more of them, are identical; and that is not apparent.

That the- proper practice, when a demurrer is sustained or overruled to a pleading which contains more than one count or paragraph, is to treat the ruling as separate in respect to each count or paragraph, and to assign or specify error accordingly, see Railway Co. v. Burnham, 42 C. C. A. 584, 102 Fed. 669; Albany Perforated Wrapping-Paper Co. v. John Hoberg Co. (this session of this court) 109 Fed. 589; Norris v. Railroad Co. (this session of this court) Id. 591, Assuming the question to be properly presented, we are of opinion that the ruling upon the demurrer was right..

The contract between the parties was one of “mutual, dependent, and concurrent promises, to be simultaneously performed”; and as a matter of pleading, therefore, it would have been sufficient for the plaintiff to aver a readiness or ability, and an offer on its part and a refusal of the defendant, to perform the contract.

The amendments to the declaration were designed to aver such readiness, offer, and refusal, but, in viéw of the rule that reasonable intendments are to be taken against the pleader, it is a fair inference from the averments made that the plaintiff was never in fact ready and presently able to transfer its property to the defendant free of incumbrance when asking of the defendant a delivery of the stock which he had agreed to transfer to the plaintiff. The plaintiff’s property was in Manitoba. It was under mortgage to a bank located there. Presumptively, the mortgage was registered there.

The defendant resided, in Illinois, and whatever offer of performance was made to him by the plaintiff it may be presumed was made in Illinois, though whether there or elsewhere is not essential.

In the absence of an explicit repudiation of the contract by the defendant, or declaration of a purpose on his part not to abide by it, he could not be put in default by an offer of the plaintiff to perform, or by a refusal of such offer, unless the plaintiff was then and there ready to transfer its property free of incumbrance as stipulated; and it being averred that the contract was made in contemplation of the mortgage to the bank (meaning with a knowledge of that mortgage by both parties), it was necessary that the mortgage should have been actually discharged, and the defendant informed of the fact, or that the plaintiff should have been ready, and have informed the defendant of its readiness, then and there to deliver to the defendant a proper satisfaction piece, duly executed for record, if recording was necessary; and, if recording was not necessary, the fact should have been averred.

The declaration, as amended, instead of stopping with the general averment of the plaintiff’s readiness, willingness, and offer to perform (which perhaps would have been enough), proceeds to allege the existence of a mortgage, and that the plaintiff “had, in truth and in fact, entered into and effected an arrangement with the bank by which the property and plant should be released and discharged from said mortgage and pledge, and the stock so turned over to and received by the plaintiff accepted in lieu thereof.” The defendant was not bound to act on that situation, which implied the surrender of his stock to the plaintiff on the faith of the alleged arrangement with the- bank and of its final consummation, or that in person or by agent he, should take the steps necessary to'effectuate the arrangement, going, if necessary, for the purpose, to Manitoba; but whether to Manitoba or across the street would be indifferent, because he was not bound to do anything to help out the plaintiff’s unreadiness.

The averment means that the mortgage had not already been released, and, that being so, the plaintiff was bound to show readiness to deliver, or in some proper way to effect a release concurrently with the defendant’s surrender of the stipulated shares of stock.

The suggestion is offered, but evidently is totally inadmissible, because inconsistent with the averment made, and with the rule that intendments are against the pleader, that the arrangement with the bank may not have been “the only means that the plaintiff had for relieving its property from incumbrance.” It was not the means of removing the incumbrance that the plaintiff needed in order to enable it to demand of the defendant performance of the contract, hut present ability to transfer its own property discharged of all liens; and that ability its declaration shows it did not possess.

If it were averred that the plaintiff informed the defendant of its arrangement with the hank, and that the defendant refused to take or to permit reasonable steps to consummate the arrangement, the question would be essentially different. ■ The judgment below is affirmed.