Johnson v. Dixon Farms Co.

This is an appeal by the defendant from the judgment on the judgment-roll alone.

By the filing of a verified complaint, the plaintiff brought the action to recover from the defendant judgment for the sum of $609, alleged to be due the former from the latter by reason of a transaction which is stated in the complaint as it was originally filed as follows:

"That on or about the 1st day of December, 1913, plaintiff sold to said defendant fifty-three tons of hay at twelve dollars per ton, amounting to six hundred and nine dollars; that said defendant promised to pay said plaintiff the said amount as follows: One-half thereof to be paid on the 1st day of January, 1914, and one-half on the last day of January, 1914."

It is then alleged that the defendant "failed and neglected to pay said amount at said times, and that the said amount, and the whole thereof, still remains due, owing, and unpaid."

The defendant demurred to the complaint on both general and special grounds. The special grounds of demurrer are that the complaint is uncertain, ambiguous, and unintelligible because it does not appear therein, nor can it be told therefrom, *Page 54 whether the defendant was required to pay for the hay before or after delivery, or whether the hay has been delivered to the defendant, etc.

The demurrer was overruled, and thereafter, in due time, the defendant filed an unverified answer or a general denial to the complaint.

The judgment recites that the defendant was not represented at the trial, but it is stipulated that, during the course of the trial (evidence having been taken), the plaintiff was permitted by the court to add to the charging part of the complaint, above quoted, the words, "and delivered," inserting said words therein immediately after and following the word, "sold." By the addition so made, the complaint was made to read: "That on or about the 1st day of December, 1913, the plaintiff sold and delivered to said defendant" the hay, etc.

A copy of the complaint as so altered or of the language added thereto as indicated was not served on the defendant or its counsel.

The position of the defendant is that the action was intended as one for goods sold and delivered, but that the complaint failed to state such a cause of action because it omitted to allege that the goods alleged to have been sold had been delivered, and that, therefore, the demurrer should have been sustained. It is further contended that the alteration made in the complaint at the trial by inserting therein the words, "and delivered," so that a cause of action for goods sold and delivered was stated, constituted an amendment of that pleading, and that, therefore, it was, under the terms of section 432 of the Code of Civil Procedure, entitled to be served with a copy of such amendment or the complaint as amended, thus giving it the opportunity to which it is entitled by virtue of said section to exercise its right to answer or demur to the amendment or the complaint as amended within the ten days allowed thereby.