Hertz Corp. v. Red Rooster Cheese Co.

The challenge on appeal is to the trial court’s sustaining in part the demurrer of plaintiff to the counterclaim of defendant. The trial court sustained the demurrer to one of five items of damage claimed in the counterclaim, relying upon a contract provision incorporated in plaintiff’s complaint.

There are two things wrong with what the trial court did.(1) A demurrer to a counterclaim, asserting that the counterclaim does not state a cause of action, is a challenge of the legal sufficiency on its face of such counterclaim. It is directed toward errors and omissions appearing on the face of…