Tanderup v. Hansen , 5 S.D. 164 ( 1894 )

Kellam, J.

(Concurring.) I concur in the reversal of this case for this reason: The action was upon contract. The summons so states, and the complaint pleads that ‘ ‘defendant promised to pay;” that the consideration of this promise was com and fodder “sold and delivered to defendant.” Whether this was the same corn and fodder previously alleged to have been destroyed by cattle of which defendant had charge, does not appear. The complaint distinctly alleges that ‘‘the defendant promised to pay.” We cannot assume that this was an implied promise, springing from the facts previously recited, so as to raise the question of the sufficiency of such facts to imply such promise. If defendant had expressly promised to pay, he would have been liable on such promise, and we cannot construe the complaint, for the purpose of this objection, to mean an implied, instead of an express, promise. Perhaps the evidence offered by plaintiff, as shown by respondent’s additional abstract, was not admissible in this action, or sufficient to raise an-implied promise by defendant, but that question was not involved in the objection to the sufficiency of the complaint. I think the complaint stated a cause of action.