Opinion · District Court, S.D. California

Washburn v. Moorman Mfg. Co.

Washburn v. Moorman Mfg. Co., 25 F. Supp. 546 (District Court, S.D. California 1938)

Type
Opinion
Court
District Court, S.D. California
Jurisdiction
California
Date
1938-11-09
Topic
bankruptcy

NETERER, District Judge. An amended complaint alleging jurisdictional facts, and the relation of the parties, states “that defendant became indebted to plaintiff upon an implied contract for the exclusive use of the photograph and name of plaintiff’s steer ‘Big Jim’, in the advertising of defendant’s animal food and products, in the sum of fifty thousand ($50,-000.00) dollars, the reasonable value thereof, all of which is due and unpaid.” The defendant moves to dismiss, not sufficient facts being stated. Plaintiff contends the complaint is sufficient under Federal Rules'of Civil Procedure, 28 U.S.C.A. following section 723c; and calls attention to forms given, which he claims in effect to have copied. These forms are merely to indicate the simplicity and brevity of statement which the rules contemplate. See Rule 84.

Citator

UpLaw has not yet analyzed Washburn v. Moorman Mfg. Co.. The absence of a flag is not a finding that it is good law.

Cited by
7 opinions
WASHBURN v. MOORMAN MFG. CO., (S.D.Cal. 1938)
25 F. Supp. 546
WASHBURN et al. v. MOORMAN MFG. CO.
No. 1420.
United States District Court, S.D. California,
Central Division
November 9, 1938.
In Equity. Action by Fred L. Washburn and John W. Condon, doing business as copartners under the fictitious firm name and style of Washburn Condon, against the Moorman Manufacturing Company on an implied contract. On motion to dismiss the complaint.

Motion sustained.
John J. Craig, of Los Angeles, Cal., for plaintiffs.

Newlin Ashburn, of Los Angeles, Cal., for defendants.
NETERER, District Judge.
An amended complaint alleging jurisdictional facts, and the relation of the parties, states "that defendant became indebted to plaintiff upon an implied contract for the exclusive use of the photograph and name of plaintiff's steer `Big Jim', in the advertising of defendant's animal food and products, in the sum of fifty thousand ($50,000.00) dollars, the reasonable value thereof, all of which is due and unpaid."

The defendant moves to dismiss, not sufficient facts being stated. Plaintiff contends the complaint is sufficient under Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c; and calls attention to forms given, which he claims in effect to have copied.

These forms are merely to indicate the simplicity and brevity of statement which the rules contemplate. See Rule 84. Rule 8 requires that the complaint shall contain (a)(2) "a short and plain statement of the claim showing that the pleader is entitled to relief", (e)(1). "Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required."

In the instant case no fact is stated to support the conclusion of "implied contract" to pay. When the facts are simply and concisely stated in lucid fashion, and support such conclusion, the parties will be placed upon proof, otherwise the action fails.

The motion to dismiss is sustained. Plaintiff may have 10 days to further plead.West Page 548