Mcarthur v. H. T. Clarke Drug Co.

• Decision Date: 16 June 1896
• Docket Number: 6735
• Citation: 67 N.W. 861,48 Neb. 899
• Parties: H. C. MCARTHUR ET AL. v. H. T. CLARKE DRUG COMPANY
• Court: Nebraska Supreme Court

67 N.W. 861

48 Neb. 899

H. C. MCARTHUR ET AL. v. H. T. CLARKE DRUG COMPANY

No. 6735

Supreme Court of Nebraska

June 16, 1896

ERROR from the district court of Lancaster county. Tried below before HALL, J.

AFFIRMED.

W. B McArthur, for plaintiffs in error.

Pound & Burr, contra.

OPINION

RAGAN C. J.

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 plaintiff complains of the defendants and for cause of action alleges: That it is a corporation existing under and by virtue of the laws of the state of Nebraska, and the defendants are a partnership doing business in Lincoln, Nebraska, and at various times between the 1st day of December, 1892, and the 1st day of July, 1893, was delivered to the defendants at their request goods, wares, and merchandise and drugs of the value of $ 401.96. Plaintiff further says that $ 401.96 is a just and reasonable charge for the goods delivered, and that although they have often demanded payment therefor, no part thereof has been paid by said defendants. Wherefore plaintiff prays judgment in the sum of $ 401.96 and interest from July 1, 1893, and costs of this action. An itemized statement of said account is hereto attached and made a part hereof." 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.

"Mr. McArthur & Son, City, Dr.

"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:

"Cr.

"March 9th. Merchandise returned

$ 3 23

"March 9th. Merchandise returned

93"

Then followed dates up to and including June 23, 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 were so sold and delivered at their request. The court held that the petition was subject to a motion to make definite and certain, but that as it showed a liability of the defendant in favor of the plaintiff, it was good as against a general demurrer. Section 121 of the Code of Civil Procedure provides: "In the construction of any pleading, for the purpose of determining its effects its allegations shall be liberally construed, with a view to substantial justice between the parties." The petition under consideration was probably framed under section 129 of the Code of Civil Procedure, which provides: "In an action * * * founded upon an account * * * it shall be sufficient for the party to give a copy of the account * * with all credits and indorsements thereon, and to state that there is due to him on such account or instrument from the adverse party a specified sum, which he claims, with interest." This is section 5086--formerly 122--of the Code of Civil Procedure of the state of Ohio, and section 123 of the Code of Civil Procedure of the state of Kansas.

1 Kinkead on Code Pleading, at section 58, in discussing this section and quoting from Judge Swan, says: "'It is sufficient here to say that the better practice is to insert the copy in the pleading of such money instruments as are described in section 122 [Ohio Code] whenever a party states his cause of action in the manner allowed by that ...