74 P. 286 | Cal. | 1903
The action was brought to recover of the defendants the sum of $341.02, the price of a lot of baled hay, alleged to have been sold to them by the plaintiff. The defendant Young was not served with summons, and plaintiff proceeded to trial as against the other defendants; they answered, putting in issue the allegations of the complaint, and the court found in their favor, and rendered judgment accordingly. The appeal is from the judgment and the order denying plaintiffs motion for a new trial.
It is contended by the appellant that the findings are not supported by the evidence. But from plaintiffs own testimony *668 it appears that the hay in question was sold to the defendant Young alone. He says: "In November, 1897, I sold Mr. Young this hay in controversy, amounting to $341, put on the cars down here at the depot, and charged it up to Mr. Young on my books. At that time I knew of Porter Brothers Company, but had never met them. I hadnt heard of Moger." In payment for the hay, it appears, Young gave an order on Moger, payable to the plaintiff, for the price of the hay, which order Moger accepted, and the plaintiff testifies: "When I received the order from Young, which was accepted by Moger, at Auburn, I credited it up to Young. I accounted for the hay to him; also charged it to him; looked to Mr. Young for the money for this hay." It seems clear, therefore, that the sale of the hay in question by the plaintiff was not to Moger, or to Porter Brothers, but to Young, personally, and that the order in question, accepted by Moger, was for the purchase of the hay from Young, and not from the plaintiff. The appellant contends that at least the judgment should have gone against Moger, inasmuch as the hay sold to Young finally came into the possession of Moger. But Mogers liability to the plaintiff is the acceptance of the order drawn by Young, and not on the purchase of the hay from the plaintiff, and this action is not upon that order, or upon any such liability. The allegation of the complaint is: "That on the thirteenth day of October, 1894, at Yolo County, California, at the special instance and request of the defendants, and of each of them, plaintiff sold and delivered to them a certain lot of baled hay at the agreed price of $341.02, at which time and place the defendants, and each of them, undertook, promised, and agreed, immediately to pay plaintiff said sum for said hay." It will be seen, therefore, that the evidence entirely fails to support the allegations of the complaint, and no application was made on the part of the plaintiff to amend the complaint, even if it were susceptible of an amendment (which it is unnecessary here to decide), to change the cause of action from that stated in the complaint to an action on the acceptance by Moger.
The judgment and order are affirmed.
Shaw, J., and Angellotti, J., concurred. *669
