Murphy v. Stelling

HALL, J.

This is an appeal by P. E. Stelling from a judgment rendered against him for damages upon breach of warranty upon a sale of certain apricot trees.

[704]

The action was brought against F. E. Stelling and Edward Stelling, but judgment went against F. E. Stelling only, and he alone appeals.

The appeal comes to this court upon the judgment-roll alone, without any bill of exceptions, and was taken more than sixty days after the rendition and entry of judgment.

In the opening brief of appellant but two points are made as grounds for a reversal of the judgment. The first is that appellant’s demurrer should have been sustained. The grounds of demurrer stated are that the complaint does not state facts sufficient to constitute a cause of action, and that the complaint is uncertain and ambiguous, for the reason that it cannot be ascertained therefrom whether the plaintiff purchased said trees from this defendant (appellant) or his co-defendant, Edward Stelling, and also that it cannot be ascertained therefrom whether this defendant or his co-defendant made the representations and warranty that the trees were of the Blenheim variety.

Appellant in his brief suggests no reason why the general demurrer should have been sustained, save to say, “We believe the complaint so defective that the general demurrer should have been sustained.”

The allegations challenged by the special demurrer are “That on or about the twenty-fifth day of February, 1894, the plaintiff applied to the defendants to purchase apricot trees of the number and variety hereinafter mentioned, and the defendants on said day sold and delivered to the plaintiff five hundred and twenty-one apricot trees, and then and there, at the time of said sale, represented and warranted to said plaintiff that said trees were of the Blenheim variety.” This is a clear and precise statement that

the

defendants—that is, both defendants—sold the trees and gave the warranty to plaintiff. It is in no sense ambiguous or uncertain in the regard suggested by the demurrer. The demurrer was properly overruled.