Christensen v. Cram

SHAW. J.

The action is to recover three hundred and fifty dollars on contract. The appeal is from the judgment upon the judgment-roll alone. The only question presented is the-sufficiency of the complaint.

[634]

The complaint was not verified, the answer was a, general denial, there was a trial by the court upon the merits, and a finding that all the allegations of the complaint were true.

The first contention of the appellant is that the complaint does not aver any promise, on the part of the defendant to pay the money sued for, nor any facts from which such promise would be implied by law. There is no express formal allegation of a promise, but it is alleged that the plaintiff sold to the defendant a horse and buggy for the sum of five hundred and fifty dollars, that the defendant paid two hundred dollars on account thereof, and that there is still due, owing, and unpaid on account of said sale of said horse and buggy to said plaintiff by said defendant, the sum of three hundred and fifty dollars

.

When it is said that one has sold to another certain property for a stated sum of money, the statement implies that the price was agreed upon and that the buyer promised to pay it. This would be the ordinary meaning of the language. The complaint, therefore, does, in substance, aver a promise by the defendant to pay to plaintiff the money sued for. The averment is defective in that it is not direct, but it is sufficiently certain to the ordinary mind. It is of the class of defects which should be considered as cured by the verdict and as not sufficiently prejudicial to the other party to warrant a reversal on appeal.

The next objection is that there is no allegation that the price was due or presently payable, at .or before the time the action was begun. In support of this objection the argument is that, in the absence of a special agreement to the contrary, the price of goods sold is not payable until delivery is made, or until the title passes, and that no delivery is alleged and it is not shown that the title passed. It is alleged that the plaintiff "sold” the property to defendant, at the price named. The word “sold” is often used to indicate an executory agreement for the sale of property. Instances of such use are exhibited in