McArthur v. H. T. Clarke Drug Co.
| Decision Date | 16 June 1896 |
| Citation | 67 N.W. 861,48 Neb. 899 |
| Parties | MCARTHUR ET AL. v. H. T. CLARKE DRUG CO. |
| Court | Nebraska Supreme Court |
1. The allegations of a pleading must be liberally construed. Code Civ. Proc. § 121.
2. In an action founded upon an account, it is sufficient for the plaintiff to give a copy of the account, with all credits and indorsements thereon, and to state that there is due to him on said account from the defendant a specified sum, which he claims, with interest. Code Civ. Proc. § 129.
3. In a suit on an account for goods sold and delivered, where the petition is framed under said section 129, and there is attached to such petition a copy of the account sued on, such account must be considered as a part of the petition, when construing the allegations thereof.
4. In such case, if the facts stated in the account, taken in connection with those stated in the petition, show a liability of the defendant in favor of the plaintiff, a demurrer on the grounds that the petition does not state a cause of action cannot be sustained.
5. A party who stands upon a general demurrer to a pleading thereby admits all the material facts averred, and must take the consequences which result from such admission.
Error to district court, Lancaster county; Hall, Judge.
Action in the county court by the H. T. Clarke Drug Company against Henry C. McArthur and William B. McArthur, partners as McArthur & Son. There was a judgment for plaintiff, which was affirmed on appeal to the district court, and defendants bring error. Affirmed.W. B. McArthur, for plaintiffs in error.
Pound & Burr, for defendant in error.
In the county court of Lancaster county, the H. T. Clarke Drug Company sued Henry McArthur and William B. McArthur, partners, doing business under the firm name of McArthur & Son. The suit was brought to recover a sum which the drug company claimed was owing to it from McArthur & Son for certain merchandise sold and delivered by the former to the latter. To the petition filed by the drug company, McArthur & Son filed a general demurrer, which was overruled by the county court; and, McArthur & Son refusing to plead further, judgment was rendered in favor of the drug company. To reverse this judgment, McArthur & Son prosecuted a petition in error to the district court, which tribunal affirmed the judgment of the county court, and McArthur & Son have filed a petition in error here to review the judgment of the district court.
1. The petition of the drug company, so far as material here, was as follows:
The itemized statement attached to the petition, so far as the same is material here, is as follows:
Statement.
H. T. Clarke Drug Company, Wholesale Druggists, Cor. 8th and P. Streets. Importers and Jobbers of Dry Paints, Oils, Glass, Stationery, and Druggists' Sundries.
Lincoln, Nebr., 8/22/93.
+------------------------------------+
¦1892, Dec. 1st. To merchandise¦$9 14¦
+------------------------------------+
Then follow dates up to and including April 13, 1893, opposite which are various charges, aggregating $757.33. Then come the credits on the statement as follows:
Then followed dates up to and including June 23d, opposite each of which are certain credits in money, the total aggregating $355.37. The difference between the total debits and credits is taken and shown on the statement as $401.96.
The question is whether this petition states a cause of action in favor of the drug company, and against McArthur & Son. It is insisted that it does not, because there is no allegation in the petition that the goods sued for were sold and delivered by the plaintiff to the defendants at the latter's request; and Stubendorf v. Sonnenschein, 11 Neb. 235, 9 N. W. 91, is cited as sustaining this contention. In that case the names of the parties thereto appeared only in the title to the case, and it was insisted that the title of the case was no part of the petition, and that, therefore, the latter did not state a cause of action, because the names of the parties to the suit were not repeated in the body of the petition, and this was the only point decided in the case. Another case cited to sustain the contention here is Tessier v. Reed, 17 Neb. 105, 22 N. W. 225. The petition considered in that case was in the following language: “The plaintiff complains of the defendant, and for cause of action says, that there is now due and owing from the defendant to the plaintiff, for goods, wares, and merchandise heretofore sold and delivered by the plaintiff to the defendant, the sum of $348.” It was probably objected to this petition (though the opinion does not so state) that it did not allege when the goods sued for were sold and delivered to the defendants, nor that they were so sold and delivered at their request. The court held that the petition was subject to a motion to make definite and...
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