30 Cal. 570 | Cal. | 1866
The action is upon a contract to deliver one thousand sacks of potatoes. Under the contract and the notice given in pursuance of its terms, the defendant was entitled to deliver the potatoes at any time between the first day of November, 1864, and the first day of February, 1865. The point made, is, that no breach is alleged in the complaint, and that, in this respect, the complaint fails to state a cause of action. The only averment which is claimed to state a breach is the following: “ That on the 4th day of December, 1864, at Pescadero aforesaid, the defendant refused to deliver said one thousand sacks of potatoes, or any part thereof, to plaintiff.” It does not appear to us that this is an averment of a breach: The most that can be fairly claimed for it, is, an allegation that defendant refused to deliver on-that day. But he was not required by his contract to deliver at that time. He had nearly two
We think the complaint defective in not stating a breach,