Higgins v. Germaine

• Decision Date: 31 August 1870
• Citation: 1 Mont. 230
• Parties: HIGGINS et al., appellants, v. GERMAINE, respondent.
• Court: Montana Supreme Court

1 Mont. 230

HIGGINS et al., appellants,

v.GERMAINE, respondent.

Supreme Court of the Territory of Montana.

August Term, 1870.

Appeal from the Third District, Lewis and Clarke County.

HIGGINS and Hagadorn commenced this action in February, 1870, to recover from Germaine $1,847.15, on an account for goods sold and delivered. The defendant demurred to the complaint, on the grounds that the complaint did not aver a promise to pay the amount demanded, or that this amount was the reasonable value of the property alleged to have been sold, or that this amount was the contract price therefor. The demurrer was overruled, and the defendant filed the following answer, which is referred to in the opinion of the court:

“Now comes the defendant, G. Jules Germaine, and for answer to the complaint of the plaintiffs, denies that, on the 2d day of February, 1870, or at any other time, he was or that he now is indebted to said plaintiffs in the sum of $1,847.15, or any other sum, on account for goods, wares and merchandise, consisting of groceries, provisions and other articles, sold and delivered to this defendant.

Denies plaintiffs' rights to recover in this action, and avers that the only indebtedness existing or owing from the defendant to said plaintiffs, accrued on an account for gold dust, the amount of which is much less in value than the claim made by said plaintiffs in their complaint. That the goods, wares and merchandise claimed by said plaintiffs to have been sold and delivered to this defendant, by the terms of such sale and purchase, were to have been paid for in gold dust. That he made no other contract, and had no other transactions with said plaintiffs, by which he became indebted to them in any manner whatever.

Wherefore, he asks judgment for his costs and disbursements in this action.”

The cause was tried in April, 1870, by the court, SYMES, J. After the testimony had been concluded, the defendant filed his motion for a nonsuit upon the following grounds:

“1. The evidence does not show that the goods sold were at any particular price agreed on, or any promise to pay any particular sum or price therefor, or that any sum of gold dust was found due.

2. The evidence does not show that defendant promised to pay the sum claimed, or any other particular sum.

3. The evidence shows that there was a special agreement or contract for the goods claimed to be sold, which was payable in gold dust, and that said gold dust was, by the terms of said contract, to be valued at $22 1/2 per ounce, which contract is not averred in the complaint.”

The court sustained the motion, and plaintiffs appealed.

CHUMASERO & CHADWICK, for appellants.

Respondent's denial of the indebtedness claimed to be due in the complaint is not a sufficient denial under our statute. Civil Prac. Act, § 41; Curtis v. Richards, 9 Cal. 33;Wells v. McPike, 21 Id. 215.

The evidence sustains the averments of the complaint of the indebtedness due from respondent to appellants, and conclusively disproves the averment in the answer, that the goods were sold and delivered, to be paid for in gold dust. All that is required in a complaint is a statement of the facts constituting the cause of action, in ordinary and concise language; and, if money be demanded, the amount should be stated. Civil Prac. Act, § 39. Nothing should be alleged affirmatively which a party is not required to prove. Green v. Palmer, 15 Cal. 413.

A complaint which alleges that the defendant is indebted in a specific sum, for goods sold and delivered by appellants to respondent, at his request, and that such sum is due from him to them, is good. Allen v. Patterson, 7 N. Y. 476.

Even if there had been a contract to sell at a stipulated price, after the contract had been completed on the part of the appellants, an action could have been maintained for goods sold and delivered. Farron v. Sherwood, 17 N. Y. 227.

The only defense interposed in this case in the court below was, that the goods were sold under a special contract, and unless that defense was sustained by the evidence, the nonsuit was erroneously granted.

It was not necessary to make a motion for a new trial in the court below. Darst v. Rush, 14 Cal. 81;Sullivan v. Cary, 17 Id. 80.

WOOLFOLK & TOOLE, for respondent.

The evidence must support the allegations of the complaint. This action should have been for so much gold dust, at an agreed price. The goods were sold for gold dust upon an implied contract to pay their reasonable value, and, after the reasonable value of the goods was ascertained, to pay a certain amount in lawful money for the gold dust. Robertson v. Lynch, 18 Johns. 456.

A party who can recover upon an implied promise to pay must show that it was for a stipulated price or sum certain. Keteltas v. Myers, 19 N. Y. 231;Moffett v. Sackett, 18 Id. 522; 1 Estee's Pl. 224, et seq.

The form of the action of assumpsit has been abolished, but the distinction between express and implied assumpsit remains. The court below determines upon which of these he supported the complaint, and permitted the parties to go to trial. Appellants must show that they followed the interpretation given by the court. If they did not do this, they subjected themselves to the liabilities of a nonsuit. Appellants should have amended their pleadings, or excepted to the construction of the pleadings given by the court. Did the court below abuse its discretion? Appellants fail to show any injury from the ruling of the court. Todd v. Winants, 36 Cal. 129.

The evidence does not support the complaint. A party cannot avail himself of facts proven upon the trial, if not issues made by the complaint. Field v. Mayor, etc., 2 Seld. 179; Brazill v. Isham, 2 Kern. 9; N. Y. Central Ins. Co. v. National P. Ins. Co., 4 Id. 85. A promise to pay a sum certain, in assumpsit, must be averred and proved.

The evidence in the record cannot be entertained by this court, because no motion was made to set aside the nonsuit or grant a new trial. This is an appeal, and the court cannot review the evidence. 3 Estee's Pl. 15, 499. If the judgment of nonsuit is against law, a new trial might have been granted if applied for. Kower v. Gluck, 33 Cal. 401. No such motion was made by appellants. If the ruling of the court, after both parties had rested their case, was a matter of law, the proper mode was by saving exceptions by a bill attached to the judgment roll. More v. Valle, 28 Cal. 170;Lucas v. San Francisco, Id. 591;Lyons v. Leimback, 29 Id. 139;Clark v. Willett, 35 Id. 534.

The court cannot order judgment in favor of appellants, and thereby exercise the...