Sherwood & Sherwood v. Gill & Lutz

On the twenty-third day of August, 1910, J. C. Fuller sold and transferred to defendants the personal property and improvements and goodwill of a saloon business theretofore conducted by him on certain premises in San Luis Obispo County. The written contract of sale provided that the purchasers “hereby agree to assume and pay all indebtedness of the said J. 0. Fuller contracted in or about the said business.” In this action the plaintiff seeks to recover on that contract as one made for its benefit and for the benefit of its assignor as creditors of Fuller on account of indebtedness contracted by him in and about the business described in said contract.

The original complaint by which this action was commenced was filed on February 4, 1913; the case went to trial upon the second amended complaint and the answer thereto. Our further references to the complaint should be understood as meaning the second amended complaint. The first count alleged that on August 23, 1910, Fuller was indebted to plaintiff in the sum of $258.59 upon an open book account for goods, wares, and merchandise sold and delivered by plaintiff to Fuller in the months of May and June, 1910. The second count…