Milliken v. Waldron

36 A. 630, 89 Me. 394, 1896 Me. LEXIS 131

• Court: Supreme Judicial Court of Maine
• Decided: December 19, 1896
• Status: Published

Opinion

Haskell, J.

Assumpsit upon tbe following account annexed: “Mechanic Falls, Me., Nov. 15, 1895. To balance due on agreed price of letters patent and patent sales book-case $420. Amount of price $500. Credit by cask $35, and by casb $45.” Exception is taken to tbe overruling of a special demurrer to tbe same, for three causes in substance.

I. Because tbe time when tbe contract -was made is not alleged. But it is alleged, Nov. 15, 1895, when two sums of money owing from defendant were applied to tbe contract price then made.

II. Because two articles are named and the price of each is not stated. Perhaps there was no price for each. Both may have been sold for a gross sum.

III. Because the articles sold are not identified, and no delivery or acceptance is alleged.' Delivery and acceptance .need not be alleged, for it is an agreed price that is sued for, not articles sold and delivered. May be the articles were not to be delivered until the price should have been paid. The articles are named and identified as those for which defendant agreed to pay a fixed sum. If he did not agree to pay that sum he is not liable for it. If he did agree to pay it, he knows very well what the particular articles were. The suit is to recover an agreed price for chattels, not for the sale and delivery of chattels.

Exceptions overruled.