Legal Opinion

Higgins v. Germaine

Montana Supreme Court

Decided August 15, 1870PublishedCited by 3 opinions

Appeal from the Third District, Lewis and Clarice County. Higgins and Hagadorn commenced this action in February, 1870, to recover from Germaine $1,847.15, on an account for goods sold and delivered. The defendant demurred to the complaint, on the grounds that the complaint did not aver a promise to pay the amount demanded, or that this amount was the reasonable value of the property alleged to have been sold, or that this amount was the contract price therefor.

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Appeal from the Third District, Lewis and Clarice County. Higgins and Hagadorn commenced this action in February, 1870, to recover from Germaine $1,847.15, on an account for goods sold and delivered. The defendant demurred to the complaint, on the grounds that the complaint did not aver a promise to pay the amount demanded, or that this amount was the reasonable value of the property alleged to have been sold, or that this amount was the contract price therefor. The demurrer was overruled, and the defendant filed the following answer, which is referred to in the opinion of the court: “Now…

1Opinion of the CourtKnowles, J.

In this action the court below sustained a motion made by the defendant for a nonsuit, for the reason that the plaintiff’s proof had not established the material allegations of the complaint.

This ruling* is assigned as error by the appellants. In determining whether the ruling of the court below was correct, it is necessary to observe what were the issues presented in the pleadings, for these determine what the plaintiffs were required to prove. The complaint is in the form of a common indebitatus count, for goods sold and delivered in a *234declaration in assumpsit at common law, save that no…

2Cases cited1 opinion

  1. Allen v. . PattersonNew York Court of Appeals · 1852

3Cited by3 opinions

  1. Merrigan v. EnglishMontana Supreme Court · 1889
  2. Power v. GumMontana Supreme Court · 1886
  3. Lumbermen's Trust Co. v. Town of RyegateCourt of Appeals for the Ninth Circuit · 1932

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