Mershon v. Randall

Appeal from the Seventh Judicial District.

The complaint in this action is in the following words:

“ Cornelius Mershon, the plaintiff in the above entitled cause, complains against Andrew Randall, defendant, both residents of the County of Marin, in the State of California, and says, that the defendant is justly and truly indebted to the plaintiff in the sum of twenty-one hundred and eighty-three dollars and forty-six cents, according to the following account, to wit:

Defendant Dr. to Plaintiff.

1852.

September 10th, to 5,400 Ibs Barley, at 3 cts. $162 00 To Cash, 85 00

1853.

March 1st, to 21,218f Ibs Potatoes, at 9 cents, 1909 68|-To one Bridle, - -- -- - 3 00

To one Boat, - -- -- -- 20 00

To 21 sacks Gunny Bags, at 18 cts. ea. 3 78

$2,183 46|-

Which is hereby prayed to be made a part of this complaint, and the said defendant, though often requested to pay the same, hath refused and still refuses to pay the same or any part thereof; wherefore, the said plaintiff prays this Honorable Court, that the said defendant be ordered. adjudged and * decreed to pay to the said plaintiff [325] the sum of twenty-one hundred and eighty-three dollars and forty-six cents, with costs of suit, and that plaintiff may have such other and further relief as to law and justice shall appertain in the premises.”'

The defendant demurred to the complaint, and specified the following causes of demurrer:

1st, There is no cause of action expressed in said complaint.

2d. The complaint does not mention that the goods were sold and delivered to the plaintiff.

3d. It does not appear from the complaint, whether it is an action of debt, trespass, assumpsit, or trover.

4th. It does not appear whether the defendant bought the goods, or whether he found them, or took them forcibly, or whether they were furnished to some other person, at his request.

5th. There is no time and place mentioned at which the defendant was indebted to the plaintiff.

The Court overruled the demurrer, and defendant appealed.

The complaint sets forth a substantial cause of action in ordinary and concise language. (Practice Act of 1851, § 39.) In the construction of a pleading for the purpose of determining its effects, its allegations shall be liberally construed with a view to substantial justice between the parties. (Prac. Act, § 70.) In an action of this kind, the plaintiff’s. statement is sufficient, if it specifies the general nature of the account, as, that the defendant is indebted to the plaintiff in a specified sum, for goods, etc., so as to distinguish it from any other demand of like nature. (7 Legal Observer, 315.) If the cause of action be so far identified, that a recovery thereon would be a bar to every future attempt to enforce the same demand again, it is sufficient. (Bond v Patterson, 1 Blackf. 38.) This was so held in Indiana under a statute similar in its provisions to the second sub-division of § 39 of our Practice Act. (Van Santvoord’s Pleadings, 145, note.) In the complaint in this case, it is alleged that the defendant is indebted to [326] plaintiff, * specifying the sum according to an account therein set forth. This account is in ordinary and concise language; it is in mercantile language, the dates are given, also the amounts and prices. The account set forth in the complaint shows who is debtor and who is creditor, and for what and when the demand accrued.