Cummings v. Dudley

Citations

• 60 Cal. 383
• 1882 Cal. LEXIS 473

Syllabus

<p>Sale Variance—Pleading—Evidence.—The complaint contained two counts, the first alleging the sale of a horse to the defendants for the sum of one thousand five hundred dollars; the second, that the defendants were indebted to the plaintiff in that sum on account of a horse delivered to them by the plaintiff at their request, which (it was alleged) was reasonably worth one thousand five hundred dollars. The proof was that the defendants agreed to give the plaintiff for the horse seven hundred and fifty dollars in money and seven hundred and fifty in horses, and that the plaintiff sold and delivered the horse to the defendant on those terms.</p> <p>Held: The plaintiff ought to have counted on the agreement to deliver the horses as well as the agreement to pay the money; but as no objection was made to the proof, as to the contract on the ground of variance or otherwise, the error was waived.</p> <p>Id.—Promise to Pay in Specific Articles—Damages. —Where a party agrees to deliver specific property at all events, without any option on his part, and he fails to carry out the contract, he is liable in damages for the valne of the property.</p> <p>Id.—Id.—Id.—Liquidated Damages.—The amount fixed in the agreement of sale in lieu of which the horses were to be delivered, should be treated, as liquidated damages.</p>