Philip v. Durkee

Citations

• 108 Cal. 300
• 41 P. 407
• 1895 Cal. LEXIS 859

Syllabus

<p>Contract for Manufacture and Erection — Pleading — Delivery — Uncertainty as to Damages.—In an action by the assignee of contractors who agreed to manufacture iron gates and lamps, and to erect them upon foundations to be prepared and designated by the defendant for an agreed sum, a complaint alleging that the assignors manufactured the gates and lamps, and that since a certain date they have been able, ready, and willing to erect the same in accordance with the contract, •and that the gates are specially adapted to the places for which they were made, and cannot be sold elsewhere without enormous loss, amounting to almost the entire contract price; that the assignors requested the ■defendant to accept the gates and lamps, and to permit their erection, and to pay the agreed sum, which defendant refused to do, does not state a ckuse of action for the price of the goods for want of an averment of delivery, or offer to deliver them, sufficient to pass the title; and, though it states a cause of action for damages for breach of the contract, is subject to a special demurrer for uncertainty as to what the damage consists of, or as to the extent of the damage, or as to how much injury was sustained by the refusal of the defendant to permit the completion of the contract.</p> <p>Id.—Immaterial Averment of Damage to Assignee.—The averment that the plaintiff, who was the assignee of the contract, was damaged to the extent of the agreed sum, is immaterial, the defendant not having contracted with the plaintiff, and cannot help out a failure to aver to what extent the assignors were damaged by the breach of the contract.</p> <p>Id.—Practice—Failure to Present Demurrer—Rule of Court—Decision of Issue of Law.—A demurrer raises an issue of law, and to overrule it decides that issue; and it is immaterial that the court overruled the demurrer because the defendant failed to appear and present it, or that a rule of the superior court provides that a demurrer will be overruled for