West End Furniture Co. v. Norman

176 N.W. 5, 44 N.D. 45, 1919 N.D. LEXIS 227

• Court: North Dakota Supreme Court
• Decided: December 27, 1919
• Status: Published

Opinions

Robinson, J.

On the evidence in this case it appears that plaintiff is entitled to recover $581.71 and interest on an account for goods sold and delivered. The appeal is from a directed verdict against plaintiff. The complaint avers that the plaintiff sold and delivered to the defendant certain furniture, on which there was due a balance of $506.95. The answer admits the purchase of certain furniture from the plaintiff, but denies that the amount due and owing the plaintiff is the amount stated in the complaint. On the trial plaintiff’s attorney testified that the claim against defendant consisted of three promissory notes, and the account amounting to $581.75; that credits had been given on the account for $42.70 and $56.25, and that at the request of the plaintiff the credits were'put on the promissory notes, and that he then paid the balance due on the notes, leaving the account wholly unpaid; that the account and the notes amounted to $1,063. He testified that he gave Mr. Norman the statement of the account as received from the company for comparison with the invoices (ex. J) ; that Mr. Norman returned the statement and said it was correct as to the goods purchased and the price. The statement was put in evidence as exhibit J. The plaintiff rested and defendant moved for a directed verdict on the ground that the complaint shows an implied contract, and the testimony establishes conclusively an express contract; that the price of the articles was agreed upon between the parties. The motion was granted and the action dismissed, with costs. That is a rare specimen of tweedledum and tweedle-dee; it is practice which reflects no credit on the court or on the counsel. When the plaintiff rested he had put in evidence the account (exhibit J.), with proof that defendant had examined it and said it was correct. That made a good strong prima facie case, and the question as to whether the contract price was express or implied became wholly immaterial. In a complaint for goods sold and delivered, the plaintiff has a perfect right to aver an express contract to pay the price charged and also that the goods were reasonably worth the prices charged.

It is true that the complaint is a slipshod document, and, before a new trial, it should be amended; but when the account was put in evidence, with proof showing that defendant had examined it and admitted that it was correct, it virtually became a part of the complaint, and, if necessary, the complaint should have been amended to conform to the fact. This principle is too clear for any discussion.

Judgment reversed and case remanded forthwith.