Stehli Silks Corp. v. Director

STURTEYANT, J.

The plaintiff commenced an action against the defendants to recover damages. The defendants answered and a trial was had in the trial court before the court sitting with a jury. The jury returned a verdict on which a judgment in favor of the plaintiff was entered. From that judgment the defendants have appealed and have brought up a bill of exceptions.

In its complaint the plaintiff pleaded two separate causes of action involving two separate and distinct contracts. On the submission of the cause, acting upon request of counsel, two special verdicts were submitted to the jury. When the jury returned its verdicts and the trial court had duly considered the same, judgment was ordered in favor of the plaintiff on the first cause of action and not on the second cause of action. The plaintiff has not appealed and it becomes unnecessary to further refer to the second cause of action.

As to the first cause of action, the plaintiff nowhere alleges that it has performed. It is alleged that the defendants purchased and plaintiff agreed to -deliver “during the months of May and June, 1920,” an invoice of silks. It is also alleged that “during the months of May and June, 1920, plaintiff prepared the balance of said merchandise for delivery to defendants herein and tendered delivery thereof to defendant corporation, but to accept delivery thereof defendant corporation refused and still refuses and have further refused and failed, and now refuses and fails to pay the value thereof. ...” The defendants filed an answer denying all of the allegations of the plaintiff’s complaint. The defendants contend that the verdict is not supported by the evidence and in this behalf they contend that the evidence is all one way and that the ■ undisputed facts are that the plaintiff never tendered delivery of the merchandise , and that the defendants never refused to accept the merchandise. In making this contention they are supported by the record. In reply the plaintiff cites authori

[593]

ties as to what facts will excuse performance. (Civ. Code, sec. 1511, subd. 3.) It is unnecessary to go into that subject. The plaintiff’s complaint did not tender the issue. The allegation as tendered by the plaintiff’s complaint at least purported to plead performance. They certainly did not make any attempt to plead nonperformance and a valid excuse therefor. The two theories are entirely different.