*1 52 Co. Cal. [29 Johnson Dixon Farms v. by appellants finding would be us make a trial- for the court, which, course, departure be a from a well- probably established rule. It is true if direct that we should a modification requested by appellants, it would be without prejudice, Campbell in Canty, was the casе Pac. 266].
However, course, think, orderly more no and one more burdensome, make would be court to to direct lower finding additional in Indeed, appel- the usual manner. recognized lants propriety of such their motion for a new trial.
It is therefore ordered and vacаted denying the order the motion for a reversed, new trial be the cause is for a new remanded trial as to one issue alone— is, paid by respondent taxes, amount penalties, costs, upon finding determination and of said amount, with interest, it is ordered that be entered requiring appellants pay said amount, and that amount, payment said their title parcel to said prop- of real erty quieted. established J.,
Chipman, J., Hart, P. concurred. Appellate District. November 27, Third No. 1382. [Civ. 1915.] JOHNSON, Respondent, MARTIN v. DIXON FARMS COM Appellant. (a Corporation),
PANY Property—Delivery not Essentiаl.—A “sale” is a Sales—Personal which, pecuniary consideration, one price, called contract property, may and it an interest be consummated transfers with- vendee. out a op op Id.—Delivery requiring Possession—Bulb Evidence.—The personal property pоssession of to be delivered the vendee to valid the creditors of the render the sale vendor way only, no enters into the evidence contract of parties far as the as an so thereto are element themselves concerned. op por Hay—Pleаding—Omission Purchase Price Al- Id.—Action Delivery-—Suppiciency op Complaint.—A lege ac- in an alleges price tion recover the of certain purchase Nov. 1915.] “sold” designated on date to the defendant or about same, and that property, promised latter action, no aver- promise, it had defaulted states ment is essential. Complaint—Showing Delivery—Nonservicb
Id.—Amendment *2 Prejudice.—An Copy—Lack during the trial of order made permitting plaintiff complaint adding the to his amend words showing hay, plaintiff thereto a and the failure of the copy to servе of such the which was amendment represented merely not at trial and which filed an unverified the ground complaint, answer to the verified not sufficient re- versal, in view of of article VI of the amendment section the 4% constitution. judgment Superior from APPEAL Court of Solano County. Buckles, Judge. A. J. оpinion are
The facts the of the court. T. Gregory, Allen, Hadsell, T. C. Thomas and Dan A. Appellant. Goodman, Respondent.
W. U. from the defendant HART, J. This is the judgment-roll judgment the alone. on filing complaint, plaintiff brought a verified the By from the defendant to recover the action alleged be due former the latter $609, to sum which is stated a transaction it reason of originally filed follows: was ‘‘ day 1913, December, plaintiff or the 1st on about That fifty-three hay tons of at twelve defendant dollars said sold to amounting dollars; six hundred and nine ton, to per said pay plaintiff the promised tо said said amount as defendant paid day to 1st on the of January, thereof One-half follows: day January, on the last 1914, one-half 1914.” neglected alleged “failed that the defendant It is then times, said amount, amount at said pay said owing, due, unpaid.” remains still and the whole general on both dеmurred defendant The grounds special The grounds. special demurrer are uncertain, ambiguous, unintelligible appear therein, can not nor it does be told because there- from, hay required whether the was defendant delivery, before or after has whether been deliv- ered to etc. time, thereafter, overruled,
The demurrer due was general defendant filed an unverified answer or denial complaint. repre- was The not that the defendant recites during stipulated trial, the course sented at the but it is taken), plaintiff (evidence having the trial permittеd by charging part of the com- court to add inserting plaint, quoted, words, “and above immediately following word, said words therein after and By made, “sold.” addition so was made day December, read: “That on or about 1st hay, said sold and delivered to defendant” the etc. A copy languаge so altered or of the added thereto indicated was not on the served or its counsel. in- position of is that the action was the defendant *3 and delivered,
tended as for but that one the com- plaint state such a cause of action it failed to because omitted alleged to that to had have been sold been therefore, should demurrer have been contended sustained. It is further that the alteration made by inserting words, in the at the trial therein the so that a cause of for “and action stated, constituted an amendment of plead- delivered was was, ing, that, therefore, it under the terms of section 432 Procedure, Civil the Code of entitled to be served with copy of such amendment or the as amended, thus giving opportunity by it the to it is entitled virtue right said section to exercise to its answer demur to the amendment or days amended within the tеn thereby. allowed doubting no reason for can see
We complaint, original draft, its stated a cause of action on a contract of sale. by our code to by “sale” defined be “a which, contract consideration, pecuniary price,
for a callеd a one to transfers (Civ. Code, property.” another an interest sec. 35 1721; Cyc. 25.) In other a sale is a transfer of the title to to for a thing another consideration. Thus plain one it is 55 Nov. 1915.] v. there- property personal title to of sale and the that a contract delivery оf the without may consummated transferred possession of requiring the property vendee, to render to vendee to be delivered being vendors the creditors valid of sale way the contract only, into and in no enters evidence are them- parties thereto an so fаr as element very complaint, clear that It is hence selves concerned. alleged original having draft, in its to promised latter dates, it de- specified and that installments on same two a cause of promise pay, at the least stated faulted so that, thereforе, pleaded, the contract sale so action on properly was overruled. the demurrer necessary complaint having verified, it was The to have stated a defense the cause of action set up complaint, (Code filed a to have verified answer. 446.) This Proc., do, having, seen, Civ. sec. failed merely answer, filed unverified and the “answer” so filed no defense to the cause of pleaded by constituted plaintiff. plaintiff was, therefore, entitled to have the stricken out on motion answer and a default thereupon entered, or, striking оf an the absence order out, “judgment (Mc- to a of an answer for want answer.” Cullough 41 Clark, 298; Hays, 337; Hemme Cal. Cal. Hart, 327, 846].) Hearst v. Pac. Thus it plaintiff, to be observed under his as it originally filed, was properly entitled awarded judgment for sued, the sum which he and that alleged amendment of his as indicated сould he judgment for obtained neither nor less, nor, indeed, have more any different relief originally have obtained from that prayed finally In for, which he received. other words, he was admittedly entitled the amount sued for on *4 sale, goods whether the were the contract or werе not deliv- of cannot, therefore, perceive ered. We wherein the defendant any returning benefit from a derive decision could the cause for further proceedings, assuming court below to the that the complaint respect of in the may truly the alteration shown changing in have resulted said to the cause of action, or pleading an of amendment the in a par- material amounted opinion Indeed, are of the we in of view ticular. the Dixon Farms peculiar cause, in the here of the record this state light should under the and accord- be considered and decided ing spirit section to the and intent of recent amendment of the say constitution, article VI of for cannot the we 41/2 complaint the allowing purported order amendment miscarriage has in resulted justice. a think, safely But may, we we take аnother view question presented. . always would, course, practice
While it be the better responsive goods in good pleading, to the rules of delivered, fact specifically directly bring delivery sale, fact cannot our- well we necessarily delivery selves belief thаt is not the fact implied hay de- the averment that the was sold to fendant, and, therefore, case, we think in this originally filed, as- it was sufficiently drafted and goods of action sold and delivered. phrase according or a interpreted word should be to the in general connectiоn is used purpose which it employed which it particular in instances. While in con- “goods sold,” might necessarily tract phrase, sale the not goods imply had been it seems to us that necessarily implied therefrom where the phrase pleading used an action to price rеcover the for which the were sold. As parlance, used common “goods sold,” phrase, would be understood buyer. and delivered to the And it is difficult to conceive a a pleading, statement in in an action price to recover the or consideration, without, had beеn sold at the same part and as thought, time the same concrete conceiving possession fact of the of the chattel to the vendee, in whom the title thereto had been vested eo instmti upon the of the sale. So, consummation opinion are of the allegation necessarily carried with to the implica- delivered it tion that he and that this is against attack sufficient any grounds out demurrer. set From this it would “and the insertion of follow that explained was unnecessary, as above and did not anything adding the effect have chan- pleaded. already of action ging the cause *5 Nov. Farms Dixon Johnson 1915.] maintain, assuredly, Most counsel system pleading, as find under the old common-law expounded by Stephens and other eminent Chitty Mr. and Mr. juristic justified feel writers, construction to which we- permissible. be subjecting would not here grow- law, Under two different actions the common were there ing 1. An action personal property, out to wit: of the sale of sold goods bargained, had been sold, where the and complete delivered, but not had been a and there commodity sold become vested had acceptance same having an actual there delivered, and in which him; 2. An action for requisite directly case it was as well system pleading pro- as the sale of article. That rules, cedure, however, required a literal observance slightest departure therefrom, technical either as to the pleading form of the action or the of the facts essential to particular statement of a action in a form, cause of party standing was, leave the without a in court. Form paramount system other held to substance under that pleading, prоcedure, practice—so so, much indeed, that finally responsible notion development became for the .of directly more liberal which ideas forced invention legal assumpsit, and, more elastic of case actions indeed, body equitable remedies now adorn the jurisprudence of all civilized countries.
But, procedure, under the reformed longer substance is no form, and, system under that (in state), subordinated this is but form of civil there actions for the enforcement or rights protection private prevention the redress or wrongs. (Code рrivate Proc., 307.) Civ. sec. And, as to viewpoint pleadings from which shall be considered, the construction, their purpose for the of deter- allegations mining effect, their their must liberally con- justice. (Code a view to substantial strued, Proc., with Civ. where, 452.) Therefore, under old sec. commоn-law system, pleading weight would crumble under the of a de- advanced murrer, system, under the or reform which con- substance, with pleading itself more might cerns same justly reasonably held sufficient to state prayed So, particular relief for. measuring this action scope our own rules Fаrms Co. pleading, say, already we do not hesitate to as we have de- clared, that from the averment that the implied, this, fact strictly proper stating while not the manner of a case is nevertheless sufficient. is affirmed. *6 Chipman, J., J., P. Burnett, concurred. petition court, supreme hаve the cause heard in the
after by appeal, the district court of was denied supreme following January 26, 1916, court on and the opinion then rendered thereon:
ANGELLOTTI, hearing The applicationfor a C. J. this cause in this court, by after district court of decision appeal district, of the third is denied. denying
In application say proper we deem it appeal properly disposed byof the district court of appeal ground opinion. on the first What was support ground affirmance, said in of a commen- second cing may, safely with “But think, we take another view ’’ question presented, is not at all essential to the main- tenance of the of appeal, district court any intimating while not view to the correctness we do not desire to be our applica- understood denial of the approving appeal tion the same. The in this ease was manifestly merit, destitute of district court of penalizing appellant would have well warranted imposition damages appeal, for a frivolous purely taken respondent’s delay, as asked counsel in his brief. J., Lawlor, Henshaw, J., Melvin, J., concurred.