Clark v. Spangler & Grouleff Lumber Co. ( 1922 )

Nichols, P. J.

— Action by appellee, Spangler and Grouleff Lumber Company, hereinafter called appellee, to recover the value of certain merchandise sold by the Guarantee Veterinary Company to appellants.

The first paragraph of complaint avers in substance that on December 19, 1918, appellants entered into a contract whereby they agreed to purchase from the Guarantee Veterinary Company 10,000 pounds of SalTonik, a stock food preparation, for the price of $450, a copy of the contract of sale being made a part of the complaint. That said merchandise was delivered to appellants by appellee, arid that appellants failed and refused to pay for the same though the purchase price was long past due and wholly unpaid. That after the execution of the contract, the Guarantee Veterinary Company duly assigned the same in writing to appellee, which assignment was made a part of the complaint. There was a demand for judgment.

The second paragraph of complaint was on account for goods and merchandise sold. A separate demurrer to each paragraph of complaint was overruled, and thereupon appellants answered in five paragraphs. The first was a general denial, and the other four were affirmative paragraphs, the substance of which we do not need to set out as they are not challenged by demurrer.

Appellants also filed a cross-complaint, more properly called a counterclaim, charging, in substance that appellee and the Guarantee Veterinary Company made certain fraudulent representations as to the medicinal properties and value of the stock foods involved, and averring that appellants were damaged thereby in the sum of $500. Appellee’s demurrer to this complaint was sustained. The cause was tried by a jury which returned a verdict in favor of appellee for $450 against appellants, with a verdict in favor of the Guarantee Veterinary Company.

Appellants assign as error the court’s action in overruling the demurrer to the first paragraph of complaint, in overruling the demurrer to the second paragraph of complaint, in sustaining the demurrer to appellants’ cross-complaint, and in overruling the motion for a new trial. Appellants contend that the first paragraph of complaint was not sufficient because it did not allege in either general or specific terms that the contract was fully performed, but we hold that an averment in the complaint of the delivery of the goods sold to appellant was a sufficient averment of performance, in the absence of a motion to make the complaint more specific. The contract involved and the assignment thereof were exhibits to the complaint, and it clearly appears that the assignment was endorsed upon the contract, and the contract was therefore sufficiently identified as the one assigned.

As the Guarantee Veterinary Company had duly assigned the contract of sale without recourse by a proper endorsement, that company was not a necessary party to the action and therefore the complaint was not demurrable for defect of parties, even though there were no averments therein as to the Guarantee Veterinary Company. Such company, however, answered the .complaint and the cross-complaint by a general denial, and after trial the verdict of the jury was in its favor. Error therefore, if any, as to defect of parties was harmless. The demurrer to the first paragraph of complaint was .properly overruled.

The grounds upon "which appellants predicate error in overruling the demurrer to the second paragraph of complaint was not mentioned in the memorandum to appellants’ demurrer, and we therefore do not consider it. We regard the allegations of the cross-complaint as expressions of opinion as to medicinal qualities of the stock food rather than as misrepresentations of fact, and as such they were not fraudulent. The substantial averments of the cross-complaint are found in both the second and fourth paragraphs of answer upon which, along with other issues, the parties went to trial before a jury which returned a verdict in favor of appellee for the full amount of its claim. It appears therefore that even if it were error to sustain appellee’s demurrer to the cross-complaint, appellants were not harmed thereby.

It was error for the court to fail in its instructions to state the issues as to the cross-complaint with the Guarantee Veterinary Company’s answer in denial thereto, but the verdict of the jury on issues presented by the answers, makes such error harmless.

We have examined the other instructions given and we find no reversible error in them. The evidence is sufficient to sustain the verdict.

The judgment is affirmed.