13 Utah 494 | Utah | 1896
after stating the case as above, delivered the opinion of the court:
The first question raised by the assignment of errors is, has the plaintiff stated a good cause of action in his complaint? The statement of the cause of action is as follows: That defendant is indebted to plaintiff in the sum of $305.69, for goods sold him by it within 18 months immediately prior to filing the complaint, and that the. same is due, and that no part thereof has been paid. These allegations were followed with a demand for judgment for $305.69 and legal interest from the day of filing the complaint. The indebtedness is alleged to be for
This is equivalent to saying that goods may be bargained and sold, but not delivered. On the first-mentioned page the same author says: “The common inclebitatus count, to recover the price or value of goods sold by the plaintiff to the defendant, states that the defendant was indebted to the plaintiff for goods, chattels, and effects, by the plaintiff sold and delivered to the defendant at his request.”
But it may be urged that the Code of Civil Procedure of this State has changed the common-law rule. On comparison of the two systems, we find that it is not so. Section 3210, Comp. Laws Utah 1888, declares the rule for stating the cause of action as follows: “The complaint must contain * * * a statement of the facts constituting the cause of action, in ordinary and concise language.” The above is, in substance, the common-law
The foregoing conclusions would seem to dispose of this appeal, but, inasmuch, as the case must be reversed and remanded, we deem it proper to consider other questions of law raised by the errors assigned, and which may come upon another trial.
The defendant urged, also, as a ground of demurrer to the complaint, that it appears therefrom that the price of the goods sold was more than $200, and it was not alleged that the agreement or any note or memorandum thereof - was in writing, or that the goods, or any part thereof, or the evidence thereof, was received, or that any part of the price was paid at the time. When the promise or agreement is alleged generally, the court will not assume, upon demurrer, that it was not in writing. In that case the burden is thrown on the defendant to allege that it was not in writing. If it appears from the complaint, however, that the transaction was within the statute, the advantage may be taken by demurrer. Browne, St. Frauds (5th Ed.) § 505; 2 Estee, Pl. &. Prac. (Pom. 3d Ed.) 449.
On the trial of the cause, the plaintiff offered in evidence the original answer of the defendant, for the purpose of proving an admission by him. To its admission the defendant objected, but the court overruled the objection, and the defendant excepted. This ruling is assigned as error. While the original answer could not be relied
In view of the conclusions we have reached upon the examination and consideration of this record, we do not deem it material to consider other errors assigned. The judgment of the court below is reversed, and the case is remanded, with directions to that court to sustain defendant’s demurrer to the complaint, and to give the parties leave to make proper amendments to their pleadings.