L. B. Menefee Lumber Co. v. MacDonald

The question arises whether the allegations of the counterclaim are sufficient to state the cause of action which the court submitted to the jury. Defendants suggest that we omit all portions of the counterclaim referring to conversion as surplusage, and that enough will remain to state a cause of action in assumpsit based upon a sale of merchandise. As suggested in defendants’ brief, the counterclaim will read as follows:

“That on or between the 31st day of August, 1923, and the first day of April, 1924, the plaintiff took and received 524,899 feet of lumber, the property of and belonging to…