R. F. BUELL v. H. CORY, 50 Cal. 639

By the Coubt: It is impossible to define the character of the action which the plaintiff intended- to institute in this case. The court below gave judgment for the- plaintiff, upon the theory that a contract of sale of the chattels was alleged in the complaint and proven at the trial. We do not think, however, that the complaint is fairly susceptible of this construction. It begins with the allegation that the plaintiff is, at the time of filing the amended complaint, the owner of the chattels; it nowhere alleges a sale, or an agreement upon the part of the plaintiff to sell them to the defendant.

The only allegation apparently looking in that direction is that defendant consented, agreed, and promised to buy them at what they were reasonably worth. This is far from sufficient as an allegation of a sale, or an agreement for a sale. It is not alleged that the plaintiff ever consented to sell.

Besides, the supposed consent of the defendant to purchase is alleged to have been given in September, 1872, while it appears, from “Exhibit B” annexed to the complaint, that it was merely the expression by the defendant of a wish to purchase, and before November, 1872, all negotiations between the parties concerning it had ceased. No rule of pleading, however liberal, can be brought to countenance such a complaint as that filed in this case. Judgment reversed and cause remanded, with directions to-sustain the demurrer.