Phillips v. Bartlett — 22 N.Y. Super. Ct. 678

Majority

p. 678

Wells Phillips et al., Plaintiffs, v. William F. Bartlett, Defendant.

Headnote

1. A complaint alleging that between specified days the plaintiffs sold and delivered to defendant, at his special instance and request, a large quantity of boots and shoes of a specified value, qqd that there is due and unpaid therefor a sqm designated which he promised to pay them; but though often requested by them, has wholly refused, is sufficient on demurrer.

2. In an action by several plaintiffs to recover for goods sold and delivered, an allegation of partnership is not necessary, and the allegation of sale and delivery sufficiently implies that the goods belonged to the plaintiffs.

Special Term,

May, 1863.

Before Robertson, J.

This action was brought by Wells Phillips and Albert Smith, against the defendant, to recover for goods sold. The defendant demurred to the complaint, the substance of which is stated in the opinion.

Mr. Harrington, for defendant.

G. L. Walker, for plaintiffs,

The complaint in this case alleges that between the first day of February and 27th of September, in the year 1862, “ the plaintiffs sold and delivered to the “ defendant, at his special instance and request, a large “ * * quantity of hoots and shoes,” of a certain value, and that there is due and unpaid therefor “ a certain sum, “ which the defendant promised to pay the plaintiffs, but “ though often requested ” by them, has wholly refused to pay it. The only cause of demurrer assigned is that the complaint does “ not state facts sufficient to constitute “ a cause of action.”

It appears to me enough facts are stated to constitute a cause of action; whether they are stated with sufficient definitiveness and certainty to identify the contracts, or inform the defendant of what he is to meet, is not a question for a demurrer. The allegation of partnership is not necessary, or even that the goods belonged to the plaintiffs,

p. 679

which is implied in the sale and delivery alleged. Even the promise to pay is unnecessarily stated.

The demurrer must be overruled, and judgment given for the plaintiff, on the usual terms.