Benedict v. Smith

On June 11, 1976, the defendant filed a demurrer to the complaint, which then consisted of three counts. Thereafter, the plaintiffs added a fourth count and, on December 17, 1976, filed a substitute complaint containing the original three counts plus the fourth count. Although the demurrer had been filed before the substitute complaint was filed, the parties have treated the demur rer as if it had been filed to the first three counts of the substitute complaint, and the court, accordingly, treats it similarly.

In the first of those three counts, the plaintiffs allege that they are…