Enoch Chamberlin and others v. John and Daniel Kaylor, 2 E.D. Smith 134

Daly, J. The omission of the letter “s,” in the word defendants, in the printed form, was a clerical error, which the court will overlook. It is not, of itself, a sufficient ground for demurring to the complaint. The complaint avers the delivery of goods and chattels at certain times, the dates whereof are given, and the amounts or value of them.

The dates or times of delivery are stated by words and numerals; that is, the year and the days by numerals, the months by words, with two of the months abbreviated, as follows: “Nov.,” “Dec.,”—arising from the plaintiffs embodying the items of the account in the complaint. They were not obliged to do so, (Code, § 158,) but there is no objection to their doing it, if they see fit; and when they do, and the cause of action can be distinctly made out, the pleading is good. Such is the case here.

A question might arise as to the manner of stating the times of delivery, but in that respect I think it sufficiently explicit and unmistakable. We are now to construe pleadings liberally, with a view to substantial justice, and it would not be promoted by seriously entertaining demurrers of this description. The defendants are fully apprised of the motive of the complaint against them. The cause of action is pointed out with unrequired particularity.

No doubt or misconception respecting it could have led them to resort to a demurrer, the putting in of which must be attributed to a desire for delay, or to a love for hypercritical accuracy. The day for extreme precision in pleading is past. Woodruff, J. I agree with my brethren, that the specific grounds assigned for the demurrer herein are properly overruled, but I am not willing to give my sanction to such a complaint as the present. In my judgment, it fails to aver foots, upon the admission of which the court can say the defendants are liable to a judgment.

There is no averment of any promise to pay for the goods alleged to have been sold by the defendants to the plaintiffs. If it be said that the law implies a promise where it finds the legal duty, it may be answered, that until the terms of the sale are disclosed, we cannot discover what was the defendants’ legal duty. Those terms are not given. Whether, according to the terms of sale, any thing is due, does not appear. The defendants are not, by the averments in the complaint, put m default.

It is not averred that they have broken any contract, failed to comply with any terms of sale, or omitted to pay moneys due. We have often suggested that a statement that the defendant “ is indebted,” or “ remains indebted,” is a mere inference, and that it goes for nothing, unless the facts alleged warrant and sustain it. Order at special term, overruling the demurrer, affirmed, with the usual leave to answer, on payment of costs.