| S.C. | Feb 1, 1877
The opinion of the Court was delivered by
The defendant is sued as an auctioneer and commission merchant, who has sold goods consigned to him for sale upon commission, for failing to account and pay over the proceeds of sale. The allegation of the complaint is that defendant had “neglected and refused” to account and pay over, &c. Defendant demurs, on the ground that the complaint does not allege a demand by plaintiff of such account. We think that the allegation of a, refusal to account and pay over is sufficient without a distinct averment of a demand. Pleadings, under the Code, are not required to formulate the state of facts with reference to the technical incidents of the right of action to which the plaintiff may suppose himself entitled. It is the Court that refers the facts to their appropriate form of action, for the purposes of its judgment, and not the pleader as at common law. The consequence is, that when a fact is pleaded, whatever inferences of law or conclusions of fact may properly arise from it are to be regarded as embraced in such averment. The allegation that the defendant refused to account is to be taken as covering an actual and not a technical refusal. After a refusal to account, a demand was unnecessary. The demurrer was properly overruled. The appeal should be dismissed.