Berry v. Kowalsky

Citations

• 95 Cal. 134
• 30 P. 202
• 1892 Cal. LEXIS 795

Syllabus

<p>Option for Sale of Wheat — Action fob Breach—Pleading—Demurrer. — A complaint alleging that the defendant executed a contract with the plaintiffs, setting out a copy of the contract, which acknowledged the receipt of a consideration- of one hundred dollars, for which the defendant allowed the agent of the plaintiffs the “privilege ” to deliver to the defendant, within thirty days, five hundred tons of S/87 wheat, “at one dollar and eighty cents percental”; and which further alleges that within thirty days the plaintiffs tendered a delivery of the wheat and demanded payment of the price, which the defendant refused to pay, ■— states a cause of action for the breach of an alleged conditional agreement to buy the wheat at plaintiffs’ option, and is sufficient, as against a general demurrer.</p> <p>Id. — Contract Pleaded in Hasc Verba — Meaning of Words or Abbreviations — Evidence — Pleading — Special Demurrer. — Where a written agreement is set out in full in a pleading, the meaning of words or abbreviations therein may be proved on the trial, for the purpose of enabling the court to interpret the words, and the oral evidence as to their meaning need not he stated in the pleading, nor do abbreviations contained in the contract render the pleading liable to special demurrer.</p> <p>Id. — Surplusage. — Where a complete contract is expressed without abbreviations used therein, they may be disregarded as surplusage, if they are meaningless.</p> <p>Id. — Description of Wheat — Abbreviations — Special Demurrer.— The words or abbreviations, “ S/87 wheat,” cannot be said, upon a special demurrer to the pleading, to be unintelligble or meaningless, nor can it be said that their use renders the pleading ambiguous or uncertain.</p> <p>Id.—Evidence — Meaning of Abbreviations—Printed Matter — Explanation of Contract — Rules of Board. — Where printed matter, not described in the complaint, composed of extracts from the rules of the Produce Exchange and Call Board of San Francisco