Andrews Industries, Inc. v. Andrews

Paragraph 1 of the demurrer alleges that a copy of an agreement set forth in paragraph 2 of the complaint “is annexed hereto as Exhibit ‘A’ and made part of this demurrer.”

It thus appears that all facts contained in that agreement are incorporated in, and made part of, the demurrer.

It is a fundamental rule of law that a “speaking demurrer” is improper since no allegation of fact is permissible in a demurrer. Ryan v. Knights of Columbus, 82 Conn. 91, 92; 41 Am. Jur. 440, § 209.

*306 It follows that the demurrer is fatally defective and must be overruled on all grounds.

It may be observed that the plaintiff should have followed the provisions of § 42 on page 31 of the Practice Book in the filing of exhibits, and that the method adopted in paragraph 2 of the complaint was wholly improper. However, the defendants, instead of enforcing compliance with § 42, so that the demurrer could be addressed to the complaint including the exhibit, sought themselves to make the exhibit part of the demurrer. This, as already- pointed out, cannot properly be done.