Behlow v. Shorb

Belcher, C. This is an action on account for goods, wares, and merchandise alleged to have been sold and delivered by plaintiff to defendants between the first day of May, 1887, and the first day of March, 1888, and to have been of the value of $2,843.25.

The defendants moved the court to quash the summons issued in the action and served upon them, upon the ground that it did not state the-amount for which the plaintiff proposed to take judgment.

The portion of the summons objected to as insufficient reads as follows: “ The said action is brought to obtain a judgment of said court for the sum of $2,843.25, with legal interest thereon from March 1, 1888, until paid, alleged to be due plaintiff upon account, and for costs of suit. Reference is had to complaint for particulars. And you are hereby notified that if you fail to appear and answer the said complaint, as above required, said [143]plaintiff will cause your default to be entered, and take judgment as prayed for.”

The motion was denied, and an exception reserved. Shortly afterwards, the plaintiff, after due notice to defendants’ attorney, moved that the summons be amended so as to meet the objections urged against it; but this application was resisted by the defendants, and thereupon denied by the court.

After their motion was denied, the defendants demurred to the complaint on the ground,—1. That it did not state facts sufficient to constitute a cause of action; and 2. That it was uncertain, ambiguous, and unintelligible in that it did not appear therefrom where the said goods were sold.

The demurrer was overruled, and the defendants then answered. They averred that the whole sum sued for had been paid, and that no part thereof was then due or payable to the plaintiff. They also, by way of counterclaim, averred that they sold, and on the twenty-third day of August, 1888, conveyed, to plaintiff a certain piece of land for and in consideration of the sum of five thousand nine hundred dollars, and “ that at the time of the execution of the said conveyance, the said plaintiff had agreed to sell and deliver the goods, wares, and merchandise mentioned in the complaint, and to do certain work for the defendants; and it being then uncertain what the amount and value of said goods or of said work and labor would be, it was agreed between the plaintiff and the defendants that when the said contract on the part of the plaintiff had been performed, if the reasonable value of the same amounted to less than the consideration for said land, to wit, five thousand nine hundred dollars, the said William Behlow should pay to the defendants the difference between the value of said goods and labor, and if the value of said goods and labor amounted to more than the sum of five thousand nine hundred dollars, these defendants would pay to the plaintiff the difference between the said purchase price of said land and the value of said goods and labor. And