S. B. Milligan and W. F. Milligan, Surviving Partners of the Late Firm of Milligan Mill Company, Plaintiffs in Error, v. W. S. Keyser and William Rudolf, Copartners as W. S. Keyser & Company, Defendants in Error, 52 Fla. 331

Whitfield, J. (after stating the facts) : A declaration in an action at law should allege distinctly every fact that is essential to the plaintffs’ right of action. South Florida Tel. Co. v. Maloney, 34 Fla. 338, 16 South. Rep. 280; Savannah, F. &. W. R. Co. v. Willett, 43 Fla. 311, 31 South, Rep. 246; Bennettt v. Herring, 1 Fla. 387.

Where an action is brought to recover damages for the breach of an executory contract containing mutual undertakings, and' those on the part of the plaintiffs are to be performed before the defendants are to perform their part, the declaration should allege a performance by the plaintiffs of their undertakings, or a sufficient excuse for nonperformance; and an allegation'that it was the duty of the defendants under said contract to perform their part, without stating the facts imposing such duty, is not equivalent to an allegation that the plaintiffs had performed their part. See Thompson v.

Klye, 39 Fla. 582, 23 South. Rep. 12, S. C. 63 Am. St. Rep. 193. Myrick v. Merritt, 22 Fla. 335; 9 Cyc. 721; City of Buffalo v. Holloway, 7 N. Y. 493, S. C. 57 Am. Dec. 550; Ball v. Doud, 26 Oregon 14, 37 Pac. Rep.

Section 1057 of the Revised Statutes of 1892 and also Circuit Court Rule 14 which require the contract, &c., upon which suit is brought, or a copy thereof, to be filed with the declaration, do not make the contract so filed a part of the pleading, and a copy of a contract annexed as an exhibit to a declaration cannot on demurrer to the declaration be used to supply an essential allegation of fact omitted from the declaration. See Hooker v. Gallagher, 6 Fla. 351; First Nat. Bank of Florida v. Savannah, F. & W. Ry. Co., 36 Fla. 183, 18 South. Rep. 345; Penrose v. Pacific Mut. Life Ins. Co. of California, 66 Fed.

Rep. 253; Oh Chow v. Hallett, 2 Sawyer (U. S.) 259, S. C. 18 Fed. Cases 10, 469; Aultman & Co. v. Siglinger, 2 South. Dak. 442, 50 N. W. Rep. 911; Marshall v. Hamilton, 41 Miss. 229; 8 Ency. Pl. & Pr., 741.

The first, second and fourth counts of the declaration in slightly varying language allege an executory contract by which plaintiffs agreed to sell and deliver and defendants agreed to buy lumber cut “in accordance with sizes and prices in said contract stated, and that the defendants should move” such lumber; and it was the duty of the defendants under said- contract to remove the lumber cut by the plaintiffs for defendants under said contract; and that- defendants neglected and refused to move the saíne.

Under the contract as alleged in these counts it was the duty of the plaintiffs to sell and deliver to the defendants lumber cut during the stated period by plaintiffs’ mill “in accordance with sizes and prices in said contract stated” before it became the duty of the defendants to buy or to remove the lumber, and the performance of such duty of the plaintiffs should be alleged in stating a cause of action.

There is no allegation in any of these counts that the lumber which the defendants neglected or refused to move was cut “in accordance with sizes and prices in said contract stated,” or even that the lumber was cut under the contract, and there is no general allegation of performance by the plaintiffs of their undertaking ; neither is an excuse for non-performance alleged. The allegations of the duty and obligation of the defendants under the contract are mere conclusions not supported by the facts stated in the counts.

Allegations that it was the duty of the defendants to move lumber cut “under the said contract” do not supply allegations that the lumber was cut “in accordance with sizes and prices in said' contract stated.” The contract “annexed marked Exhibit ‘A’ and made a part” of counts one, two and four cannot on demurrer be used to supply an omitted allegation of fact essential to the cause of action; and even if it could be so used it is an executory contract, and, of course, does not contain a statement that its provisions on the part of the plaintiffs have been performed.

In the absence from these counts of an allegation that the plaintiffs had performed their part of the contract which is a prerequisite to the duty of the defendants to perform their part no right of action against the defendants is shown. The allegations in count numbered four as to a supplemental agreement to pay the damages complained of are insufficient, since it is not alleged that the plaintiffs had a right to rescind the contract, and no other consideration for the agreement is alleged.

Counts numbered' six and seven allege a contract containing an agreement to sell and deliver and to buy all the lumber cut during a stated year by plaintiffs’ mill “in accordance with sizes and prices in said contract stated, and that the lumber so cut should be placed upon plaintiffs’ mill yard at Milligan, and be therefrom removed by the defendants;” and count numbered six contains the further allegation “and that the defendants should move every size of the said lumber so contracted for at least once during the year, and the -said plaintiffs aver that, notwithstanding the obligation of defendants to move every size of said lumber cut by plaintiffs for defendants under said contract during the year, the defendants neglected and refused to move the same or any of said sizes, during the year.” Count numbered' seven differing from number six alleges “that it was the duty of the defendants during the period of the performance of the said contract, and such was contemplated and intended by the said parties when they entered into the same, to move from plaintiffs’ said' mill yard lumber cut by plaintiffs for defendants under the said contract, at such times and in such quantities as to avoid so covering up and blocking the said mill yard as to interfere with the operation of the said mill; and plaintiffs aver that notwithstanding the premises the defendants refused to so move such lumber.” Neither count alleges that the plaintiffs cut any lumber “in accordance with sizes and' prices in the said contract stated.” The agreement as alleged in both counts “that the lumber so cut should be * * * removed by the defendants” contemplated that “the lumber so cut” should be cut “in accordance with sizes and prices in the said contract stated,” and there is no allegation that it was so cut.

The agreement alleged in count numbered' six “that the defendants should move every size of the said lumber so contracted for at least once during the year” refers to lumber cut “in accordance with sizes and prices in the said contract stated,” and it is not alleged that the lumber defendants refused to move was so cut. The obligation and duty of the defendants stated in the two counts are mere conclusions not supported by the facts previously alleged' in the counts.

An allegation that it was the duty of the defendants to move “lumber cut by plaintiffs for defendants under said contract,” is not supported by the allegations of fact in the count when there is no allegation that the lumber was cut “in accordance with sizes and prices as in the said contract stated.” Allegations as to what the parties contemplated and intended cannot vary the terms of the contract as stated'. See Perry, Gov. v. Woodberry, 26 Fla. 8á, text page 91. The demurrers to these counts were properly sustained.

The eighth count differs from the others by alleging that “the defendants refused to move from plaintiffs’ mill yard large quantities of the lumber cut by plaintiffs for defendants under the said contract.” There is in this count no allegation that the lumber was cut “in accordance with sizes and prices in the said contract stated” and' no general allegation of performance by the plaintiffs.

Refusal to move “lumber cut by plaintiffs for defendants under the said contract” is not apparently a refusal to move lumber cut “in accordance with sizes and prices in the said contract stated.” The agreement stated covered “all the lumber cut by plaintiffs’ mill” during a given period, and it may be that lumber cut by the plaintiffs’ mill during the period was “cut by plaintiffs for defendants under said contract,” although not cut “in accordance with sizes and prices in the said contract stated” so as to impose a duty upon the defendants.

While it is not material on demurrer to show what were the “sizes and prices in the said contract stated” it is necessary that the counts should contain an allegation that the lumber which the defendants refused to move was cut “in accordance with sizes and prices in said contract stated” or some equivalent allegation in order to show the duty of the defendants and the right of action for failure to perform such duty. The allegations of the ninth count are equally defective under the principles announced above.

The tenth count alleges that before the institution of ihis suit plaintiffs contracted to sell to defendants the entire cut of lumber at plaintiffs’ mill during a given period “upon terms and conditions agreed upon between them; and defendants agreed to buy the same and remove it from plaintiffs’ mill yard,” &c.

The “terms and conditions agreed upon” are not given, and as it is not alleged that the defendants agreed to move “such lumber from plaintiffs’ mill yard at such times and in such quantities as to avoid blocking up the said mill yards” &c., it is not shown to have been the duty, as alleged, of the defendants to move said lumber at such times and in such quantities as to avoid the blocking of the mill yard so as to give the plaintiffs a right of action against the defendants for refusing to so move the lumber.

The defendants agreed to buy the lumber cut “upon terms and conditions agreed upon” and to remove it from plaintiffs’ mill yard. There is no allegation that the lumber was cut “upon terms and conditions agreed upon” and there is no allegation that in the absence of a time agreed' upon to move the lumber it was not moved within a reasonable time with reference to the circumstances of the contracting parties. This count, therefore, does- not state a right action against the defendants. As none of the counts here considered states a cause of action against the defendants the demurrers were properly sustained.

The plaintiffs failing to amend the declaration final judgment was properly entered for the defendants and' such judgment is here affirmed. Shackleford, C. J., and Cockrell, J., concur. Taylor and Hocker, JJ., concur in the opinion. Parkhill, J., disqualified.