Moore v. Waddle

By the Court, Currey, C. • J.: By the complaint it appears that the defendant and one Grist entered into a contract under seal, on the 13th day of February, 1865, by which the former agreed to deliver to the latter, or upon his order, twenty tons of hay at a designated place in El Dorado County, on or before the first of April then next. On the 14th of February, Grist assigned Ms interest in the contract to the plaintiff by an indorsement in writing thereon, and thereby authorized the defendant to deliver the hay to the plaintiff or his agent on or before the first of said April. The hay was called for and demanded on the part of the plaintiff, of the defendant, before the first of April, and also on that day. The defendant was at the time informed of the assignment, and being so informed refused to deliver the hay as requested, or any part of it, and from thence to the bringing this action, continued to refuse compliance with the demands mentioned. The plaintiff alleged in his complaint that the hay was worth sixty-four dollars a ton, amounting in the aggregate to twelve hundred and eighty dollars, and that by reason of the defendant’s failure and refusal to deliver the property to Mm in pursuance of the contract he had sustained damage in the sum last named, for which he demanded judgment.

The defendant craved oyer of the contract in writing, a copy of which was furnished Mm, and with it a copy of the assignment to the plaintiff was furnished also. The contract is sufficiently well described in the complaint. The assignment by Grist to the plaintiff is dated the 14th of February and is in these words : “ This is to certify that I have sold to Wm. Moore the above named hay, all my right, title or interest in the same, and hereby authorize John Waddle to deliver to Mm or Ms agent, the above named twenty tons of hay, when called for, on or before the first day óf April next.”

The contract and assignment being thus produced and furnished to the defendant, he demurred to the complaint [147]on the ground that it did not state facts sufficient to constitute a cause of action, and then specified wherein it was insufficient. The Court sustained the demurrer, and thereupon judgment final was rendered against the plaintiff, from which he has appealed.

The points specified on the part of the defendant in support of the ground of demurrer assigned, are that the complaint does not set forth what was the consideration for the agreement or contract of the defendant, nor what was the consideration for the assignment.