Campbell v. Heney

TEMPLE, J.

This is an action to recover the purchase price of grapes sold to defendant. The appeal is from the judgment and from an order refusing a new trial.

Among the points made by appellant he contends that the complaint does not state a cause of action. The complaint contains a copy of the written contract of sale and also an averment of its tenor and effect. As to payment it states: “Payment to be made when defendant should have sold the wine made by him from said grapes, or he should have sold certain other wine which he then had on hand. That within a reasonable time after the delivery of said grapes to said defendant as aforesaid, to wit, on or about the ninth day of March, 1896, the plaintiff demanded of him payment of said sum of twelve hundred and thirty-seven dollars and sixty-five cents, hut said defendant refused to pay said sum of money or any part thereof.”''

It is not stated that defendant has sold or could have sold any wine, nor is any fact averred except the date of the contract and the demand, from which it would be'claimed that it was made to appear that a reasonable time had elapsed since the sale of the grapes for the manufacture and sale of the wine. For, I think, a fair construction of the contract is, that defendant should have time to make, mature, and sell the wine to be made from the grapes he purchased from plaintiff, unless in the meantime he did in fact sell the other wine then on hand.

If we can assume, in the absence of any allegation to that effect, that the phrase “reasonable time” in the complaint refers to what would he a reasonable time within which defendant could manufacture, fit for market, and sell the wine, still the'allegation is that he made demand "within that time—not that he made the demand after a reasonable time had elapsed. The

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pleader negatives the imputation of laches by an averment that he made the demand promptly, when the contract was that he would wait patiently for a reasonable length of time. The finding upon this point is in the same form. We may conjecture that the pleader intended to aver something quite different from the idea he has expressed, but we cannot correct the pleading. It would not be done by the insertion or elimination of a word which we could suppose was inadvertently used or omitted. The allegation would have to be entirely recast and made into one altogether different.