Kilpatrick-Koch Dry-Goods Co. v. Box
| Citation | 45 P. 629,13 Utah 494 |
| Decision Date | 23 June 1896 |
| Docket Number | 708 |
| Court | Utah Supreme Court |
| Parties | KILPATRICK-KOCH DRY-GOODS COMPANY, RESPONDENT, v. E. A. BOX, APPELLANT |
Appeal from the district court of the Fourth judicial district Territory of Utah. Hon. H. W. Smith, Judge.
Action by the Kilpatrick-Koch Dry-Goods Company, against E. A. Box. Judgment for plaintiff, and defendant appeals.
The plaintiff commenced this suit by filing the following complaint, duly entitled, signed, and verified Defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendant excepted. The defendant then filed the following answer, duly entitled signed, and verified:
And afterwards, upon leave of court, defendant filed the following amended answer, properly entitled, signed, and verified: "Now comes the defendant herein, and, leave of court being first had and obtained, files this amended answer, and alleges that he has no knowledge, information, or belief sufficient to enable him to answer the allegation in plaintiff's complaint that it is a corporation organized, existing, and doing business under and by virtue of the laws of Nebraska, and therefore denies the same; denies that defendant is indebted to the plaintiff in the sum of $ 305.69, as alleged, or any other sum, or at all, for goods sold as alleged, or otherwise, or at all; denies that said alleged or any sum is due, or past due; denies that said alleged or any sum is due." A jury was then ordered by the court, and duly impaneled and sworn to try the case. The plaintiff then offered in evidence the answer first quoted, to which defendant objected (1) for the reason that a cause of action was not stated in the complaint; (2) the answer was incompetent and immaterial; that it had been in effect withdrawn from the case, and was no longer a pleading in the case; that it was not competent as an admission against the defendant. This was all the evidence, and there was no other admission admitted or offered. The jury returned a verdict for the plaintiff in the sum of $ 325.85, upon which the court entered judgment against defendant. The defendant entered a motion for a new trial. The court overruled the motion, and the defendant excepted.
Reversed and remanded.
R. H. Jones, for appellant.
The court erred in construing defendant's original answer as pleading new matter and as containing an admission when it was only intended as an affirmative traverse of plaintiff's negative allegation that "no part thereof has been paid." 2 Estee, p. 5-12, § 33-34; Frisch v. Caler, 21 Cal. 75.
Court erred in admitting any evidence under the complaint, and especially in admitting in evidence the original answer as it had been laid out of the case, and was superseded by the amended answer, and could not perform any further function. Barber v. Reynolds, 33 Cal. 497.
A. R. Heywood, for respondent.
The complaint in this case appears to be good from the authority cited by appellant--4 California 326. It is there apparently expressly decided that an allegation of indebtedness which alleges either a sale or a delivery of goods is sufficient. Estee cites Canfield v. Tobeas, 21 Cal. 350, as authority for a complaint alleging goods sold. In that case the pleading was not as complete as ours.
Even if the view of appellant, that the complaint is too brief, should be taken, the answer (see abstract, top of page 3) has supplied the defect by an admission of an indebtedness of $ 276.06.
Bliss on code pleading, section 437, lays down the rule that where an answer aids the complaint so that by the two the cause of action is stated, any objection to the sufficiency of the complaint is waived. Proof of the payment, set up in his answer, is on defendant.
, after stating the case as above, delivered the opinion of the court:
The first question raised by the assignment of errors is, has the plaintiff stated a good cause of action in his complaint? The statement of the cause of action is as follows: That defendant is indebted to plaintiff in the sum of $ 305.69, for goods sold him by it within 18 months immediately prior to filing the complaint, and that the same is due, and that no part thereof has been paid. These allegations were followed with a demand for judgment for $ 305.69 and legal interest from the day of filing the complaint. The indebtedness is alleged to be for goods sold,--not for goods sold and delivered, or for goods bargained and sold. The phrase, "goods sold," is not followed by an allegation of a promise to pay. If the term "sold" always imported a delivery,--if it were the equivalent of the words, "sold and delivered,"--a promise to pay might be implied. But, in pleading, it is not a technical term that has such a meaning attached to it. Chitty, who is regarded as the highest authority on pleading at common law, says: "In order to maintain a count for goods sold and delivered it is essential that the goods should have been delivered to the defendant or his agent, or to a third person, and credited by the plaintiff at the request of the defendant, or that something equivalent to a delivery should have occurred; and if not delivered, but still on the premises of vendor, though packed in boxes furnished by the purchaser, plaintiff would be non-suited, for he should have declared for goods bargained and sold, or specially." 1 Chit. Pl. pp. 345, 346.
This is equivalent to saying that goods may be bargained and sold but not delivered. On the first-mentioned page the same author...
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