Martyn

In this action the plaintiff sued upon an assigned claim for the sum of $1,616.55, which was the alleged contract price of a quantity of tool steel claimed to have been sold and delivered to the defendant at its special instance and request. Plaintiff recovered judgment as prayed for, from which and from an order denying a new trial the defendant has appealed upon the judgment-roll and a bill of exceptions.

Plaintiff’s complaint consists of three causes of action separately stated. The first count of the complaint alleges in the usual and ordinary form a cause of action upon an indebtedness for goods sold and delivered to defendant by plaintiff’s assignor. The second count of the complaint also states a cause of action upon an existing indebtedness for the same goods alleged in the first cause of action to have been sold and delivered to the defendant, and, in addition to detailing the circumstances of the transaction, proceeded! generally upon the theory that title to the goods had passed to the defendant upon tender of delivery. The third count of the complaint was intended, evidently, to meet the contingency of the plaintiff’s proof failing to show that title to the goods had…