Opinion
March 17, 1911.
Charles H. Ayres and L.J. Luce, for the appellant.
Ward W. Pickard, for the respondent.
I think the demurrer should have been sustained on the ground that the complaint does not state facts sufficient to constitute a cause of action. It alleges that on or about the 12th day of October, 1905, the plaintiff sold and delivered to the Staso Company a stone crusher known as a Kent mill, with other parts, for which the company paid the plaintiff the sum of $500, "and agreed to return said mill and accessories to plaintiff within ten days after the same should be set up, or in case of failure so to return the same, to pay him the further sum of Two thousand Dollars ($2,000) therefor." The complaint further states that the Staso Company transferred and conveyed to the defendant the Staso Mills all its assets, "and in consideration therefor defendant assumed and agreed to pay all the liabilities of said The Staso Company, including the liability of said The Staso Company to this plaintiff hereinabove set forth."
The complaint does not state either that the Staso Company had set up the mill or had unreasonably failed or neglected to do so, and while it states that the defendant had assumed to pay the obligations of the Staso Company, there is no allegation that it has failed to do so, or that it has failed or neglected to pay the $2,000 to the plaintiff. The learned counsel for the respondent claims in his brief that it was the intention of the plaintiff to allege that no part of the $2,000 has been paid, and in effect that the failure to set up the mill is a reasonable inference, but the requirements of the Code of Civil Procedure necessitate a " statement of the facts" constituting a cause of action, so they cannot be deduced by mere inference. (§ 481, subd. 2.)
It follows that the interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, but with leave to the plaintiff to serve an amended complaint on payment within twenty days.
JENKS, P.J., BURR, THOMAS and RICH, JJ., concurred.
Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to serve an amended complaint on payment within twenty days.