Warfield v. Basso

California Court of Appeal May 1, 1923 No. Civ. No. 4151.Published

Before: Houser

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Holding. A complaint that alleges a contract and its breach states a cause of action sufficient to survive a demurrer, even if the plaintiff has miscalculated or misstated the appropriate measure of damages. Furthermore, a contract for the sale of personal property is not rendered invalid by the statute of frauds if the buyer has made a partial payment of the purchase price.

Issues

Whether a complaint is demurrable if it alleges a contract and breach but requests an incorrect measure of damages.
Whether a complaint must affirmatively allege that a contract required to be in writing is in writing.
Whether partial payment of the purchase price satisfies the statute of frauds for the sale of personal property.

Disposition. reversed

Quotations verified verbatim against the opinion

“the rule of law is that where the facts stated in the complaint show that the plaintiff is entitled to damages of some sort, it is not a fatal error that the pleader has mistaken the rule by which such damages should be determined.”

“in an action on a contract required by the statute of frauds to be in writing, the presumption is that the contract is in writing, and there is no necessity for an allegation in the complaint to that effect.”

HOUSER, J.

Plaintiff commenced an action against defendants by filing a complaint which, after the formal parts thereof, contained the following allegations:

“That on said 3rd day of February, 1922, said defendants were the owners of and in possession of one certain Chev

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rolet automobile truck, Model No. 490, of the reasonable value of $658.80, and on said day and date, said defendants entered into an agreement and contract with the plaintiff herein, by the terms of which said defendant sold and agreed to deliver unto plaintiff said automobile truck, in consideration of the payment of the sum of $658.80, payable as follows: $8.80 in cash money, and one certain Overland automobile valued by said defendants at $300.00, and the further sum of $350.00, to be paid in twelve equal monthly installments, and said automobile truck to be delivered to plaintiff upon delivery of said Overland automobile and the payment of said sum of $8.8'0, in money.

“That plaintiff, on said 3rd day of February, 1922, paid to said defendants, the sum of $8.80, a portion of said price of said Chevrolet automobile truck, and said defendants received said sum of $8.80, a part of the purchase money of said automobile truck; and plaintiff tendered and offered to deliver to defendants, said Overland automobile, and was and is now able, ready and willing to pay said installment payments, and in all things carry out the conditions of said contract on his part to be performed.

“That on the 6th day of February, 1922, made such tender and offer to deliver said automobile, and then and there made written demand, that said truck be delivered to plaintiff, but said defendants refused to deliver said truck, and shortly afterwards, within 30 days, subsequent to said 3rd day of February, 1922, as plaintiff is informed, and has good reason to believe and does believe, the defendants sold and parted with the possession of said automobile truck, and placed it beyond their power to deliver the same to plaintiff, to his damage in the sum of $658.80, the value of said automobile truck.

“That plaintiff purchased said automobile truck, for his own use, in his business, for hauling, and at the time of making said contract with the defendants so informed defendants of such fact, and that such an automobile truck, was necessary for use in the business of plaintiff; that the reasonable value of the use of said automobile truck, in plaintiff’s business, is $2.00 per day, and by reason of the failure of defendants to deliver said automobile truck, to plaintiff, pursuant to the terms of their said agreement, plaintiff has been damaged in the sum of $2.00 per day, for

Warfield v. Basso

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HOUSER, J.

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