Simon, Jacobs & Co. v. Scott

53 Cal. 74

Opinion

By the Court :

The complaint does not allege a sale and delivery of goods to defendant.

Whether defendant is liable for the goods furnished to the wife or not, it is certain that plaintiffs cannot recover against him their value, in the absence of an averment that they were sold and delivered to him. If she was authorized by reason of her relation to her husband, the nature and character of the goods, and the husband’s circumstances, to purchase them, the goods were in law sold to defendant, and the averment should have been to that effect. The averments in respect to furnishing the goods to the wife, etc., might have been omitted as mere evidence, and not the statement of ultimate facts.

The demurrer should have been sustained.

Judgment reversed and cause remanded, with direction to the Court below to sustain the demurrer to the complaint.