Alaska Salmon Co. v. Standard Box Co.

The action was for damages for breach of contract. The case was tried before a jury whose verdict was given for plaintiff. From the judgment which followed and from the order of the court denying defendant's motion for a new trial it appeals. *Page 569 The complaint charged that in October, 1905, plaintiff and defendant entered into a contract whereby defendant agreed to manufacture for plaintiff one hundred thousand wooden boxes to be delivered during the canning seasons of 1906 and 1907 as called for by plaintiff for its use in the business of manufacturing and selling canned salmon. Defendant supplied plaintiff for the canning season of 1906 with forty-four thousand boxes and plaintiff prior to the commencement of the canning season of 1907 demanded of defendant that it furnish the remaining boxes, to wit, fifty-six thousand, for use during the canning season of 1907. It is alleged that plaintiff has always been ready and willing to receive the said fifty-six thousand boxes and to pay for them at the price called for by said contract, and in accordance with the terms thereof, but that defendant has refused to deliver the boxes, whereby plaintiff has been damaged in the sum of…

1. In the petition for a rehearing it is urged that this court misconceived the position of appellant, *Page 576 which is that the complaint did not state a cause of action in failing to allege that the contract was in writing and in failing to allege any consideration for the agreement which it pleads that defendant entered into. Except for the petition for rehearing, it would have been regarded as unnecessary to say that no demurrer was interposed to the complaint, either general or special, and that the complaint does allege that plaintiff has always been ready and willing "to receive the said 56,000 boxes and to pay for them at the price called for by said contract and in accordance with the terms thereof." However defective this allegation might be regarded as an allegation of consideration under the attack of a special demurrer, in the absence of either general or special demurrer a cause of action is sufficiently stated. In Moore v. Waddle, 34 Cal. 145 , discussion was had with reference to a demurrer which was therein interposed to the sufficiency of the complaint. It was pointed out that under the common-law rules of pleading a consideration was imported only to an…