Hill v. Nerle

THE COURT.

Appeal from judgment upon the judgment-roll alone.

The plaintiff’s complaint in this action consisted of two counts: One for the sum of $190.85, alleged to be the balance

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due for goods sold and delivered by plaintiff’s assignors to the defendants; the other for the sum of $217.50, alleged to be due to the plaintiff’s assignors from the defendant for moneys advanced for the payment of freight and transportation charges, etc., upon the goods alleged in the first count to have been sold and delivered to the defendants. The defendants answering denied generally and specifically all of the material allegations of the plaintiff’s complaint. The complaint was verified; the answer was unverified. The case went to trial upon the pleadings as presented, and the trial court made its findings of fact, wherein it found that the sum of $336.36 was due from the defendant for the goods sold and delivered, notwithstanding the fact that the complaint alleges in the first count that there was due for and on account of such sale only the sum of $190.85. The trial" court further found that the defendants did not, as alleged in the second count of the'complaint, become indebted to plaintiff’s assignors in the sum of $217.50, nor in any other sum for moneys paid and advanced by plaintiff’s assignors in payment of freight and transportation charges upon the goods found to have been sold and delivered to the defendants.

The plaintiff prayed for judgment in the sum of $336.36, and that amount, it will be noted, is the aggregate of the sums, separately stated and set forth in each of the two counts of the complaint.

The point is now made in support of the appeal from the judgment that the judgment is not supported in its entirety by the findings as made, and therefore should be modified to the extent of striking therefrom the sum of $217.50, which the court allowed in its judgment, but which it found was not owing by the defendants. Counsel for the plaintiff answers this contention by asserting that the defendants, having failed to verify their answer to the plaintiff’s verified complaint, the allegations of the complaint with respect to the payment by plaintiff’s assignors for the benefit of the defendants of the sum of $217.50 for freight charges, etc., stand as admitted; and it is insisted that the finding, therefore,. that the defendants were not indebted in any sum to the plaintiff’s assignors for moneys advanced for transportation charges is contrary to an admitted fact in the case, and may be treated as surplusage, and the admitted fact of the complaint resorted to in aid and in support of the judgment.