Hamberger-Polhemus Co. v. Hind, Rolph & Co.

NOURSE, J.

Plaintiff sued upon a complaint pleading two causes of action “for breach of contract,” one in the form of a common count for money had and received and the other based upon five written contracts for the purchase and sale of sugar. The defendants’ demurrer to the complaint was sustained without leave to amend and the plaintiff has appealed upon the judgment-roll.

The first alleged cause of action pleads that the defendant is indebted to the plaintiff in the sum of $613.25 for money had and received by said defendant for the use of plaintiff. This pleading of an indebtedness under the old form known as a common count is sufficient against demurrer under the rule of

Pike

v.

Zadig,

171 Cal. 273, 276 [152 Pac. 923], and cases there cited. The general demurrer should, therefore, have been overruled upon the authority of that case and the special demurrer, inasmuch as it merely raised the point of uncertainty as to how the indebtedness arose, should likewise have been overruled upon the same authority (p. 277), the remedy of the defendant being to demand a bill of particulars.

[626]

The second cause of action alleged that on June 19, 1924, plaintiff and defendant entered into two contracts, designated

“A”

and “B,” wherein the defendant agreed to buy and the plaintiff agreed to sell to defendant a total of 1,000 bags of sugar at the rate of $6.90 per hundred pounds; that on June 23, 1924, the same parties executed the contract designated “C,” wherein the defendant also agreed to buy and the plaintiff to sell 1,000 bags of sugar at the price of $4.50 per hundred pounds; that delivery of the sugar mentioned in contracts “A” and “B” was to be at San Francisco; that on August 18, 1924, the same parties executed a contract designated “D,” wherein the plaintiff agreed to buy and the defendant agreed to sell to plaintiff 1,000 bags of sugar at the price of $6.75 per hundred- pounds, the delivery thereof to be at San Francisco ; that on the same day the same parties executed contract “E,” wherein the plaintiff agreed to buy and the defendant agreed to sell 1,000 bags of sugar at $4.37% per hundred pounds, delivery thereof to be made at Vancouver, B. C.; that thereafter the date elapsed at which the sugar should have arrived at said ports and that the time for delivery thereof had long since passed; that thereafter the plaintiff demanded of defendant that it deliver the lots of sugar mentioned in contracts “D” and “E” and at the same time informed defendant that plaintiff desired the delivery of said sugar so that it might redeliver to it the sugar agreed to be sold under contracts “A,” “B,” and “C”; that the defendant failed and refused to make delivery of the sugar as demanded; that the tare on said sugar amounted to one pound per bag and that the net weight of each of said bags was 223 pounds; that plaintiff had demanded of defendant that it pay the difference between the purchase prices of said sugar specified in the five contracts mentioned, but that the same has remained unpaid. The prayer of plaintiff under this cause of action is $613.25, the same amount demanded under the common count.