(specially concurring). This is an appeal from a judgment dismissing the action.
The complaint alleges that between certain dates the plaintiff sold and delivered to defendant goods upon which there was a balance due, on January 1, 1918, of $566.95. The answer admits the purchase of certain goods, but denies that the amount due and owing the plaintiff is the amount stated in the complaint. By way of defense and also of counterclaim, the answer further alleges that, concerning some of the articles so ordered and purchased, the plaintiff made certain warranties; that by reason of the breach of such warranties, upon which the defendant relied, he has been damaged in an amount stated; that one item of such damage for the misrepresentation and deceit occasioned is the difference between the actual value of the articles furnished and the contract price.
At the trial the defendant objected to the introduction of any evidence, upon the ground that the complaint failed to state a cause of action, and also demanded that the plaintiff state upon what theory it was proceeding, whether upon an express or an implied contract, or whether upon an agreed or reasonable value of the goods.
The court expressed its opinion that the action was on an implied contract. The plaintiff’s counsel then stated that such was the theory upon which the action was brought. The plaintiff thereupon proceeded to prove the itemized account for the articles furnished, with the prices therefor after each of the articles, and that the defendant stated that such account was correct as to goods purchased and prices. Thereupon the plaintiff rested, and the defendant moved for a directed verdict for dismissal upon the ground that the proof disclosed an expressed contract *50whereas the complaint was upon an implied contract, and such was the theory of the action as stated by the plaintiff. This motion was granted together with a dismissal of defendant’s counterclaim, without prejudice. The appellant, in his brief, contends that the action might be considered, under the old practice as laid in debt, or otherwise as “in-debitatus assumpsit." The respondent contends that the action, as laid in the complaint and upon the theory -as adopted by the plaintiff, is upon an implied contract, and, the proof showing an express contract, there exists a fatal variance which prohibits the appellant, under the general rule, from recovery.
I am of the opinion that both the court and the parties misconceived the issues existing upon the allegations of the complaint and the admissions and allegations contained in the answer. Even though in-artificially drawn, the test of the sufficiency of a complaint is whether it informs the defendant of the nature of the- demand so that he may not thereby be misled in the preparation of his defense (31 Cyc. 101). It is fundamental furthermore, in pleading, that a fact admitted in an answer is available to the plaintiff as if well pleaded in the complaint. 31 Cyc. 214. Consequently the admission of a necessary allegation in a complaint may be supplied, admitted, or alleged by the answer. 31 Cyc. 714.
Accordingly, upon the issues as framed in this case, it appears that the plaintiff alleges a sale and delivery to the defendant and of a balance due therefor; that the defendant admits the sale, admits the purchase of certain articles from the plaintiff and a contract price therefor, denying, however, that the amount due and owing was the amount stated in the complaint. Upon the issues in this case the defendant could not, in any manner, be misled concerning the nature of plaintiff’s demands. The issues show an action upon an express contract; a sale of goods is an accepted and executed contract therefor. 35 Cyc. 27. Ordinarily there is no sale if the parties have not agreed upon the price, either expressly or by implication. 35 Cyc. 48. Expressly, the plaintiff proved the same and the prices for the goods so sold. The fact that the court or the plaintiff may have considered this complaint, by itself, upon ancient procedure, or upon the subtleties of common-law pleading, as a cause of action based upon a form of implied contract, does not serve thereby to defeat the right of the plaintiff when the issues as framed *51and tbe proof as submitted, show a right of recovery upon an express contract. Where no prejudice is shown to the rights of the defendant, it is a mere play upon legal technicalities to defeat plaintiff’s right of recovery, by shifting the plaintiff, through the action of the court and of his counsel, into a position of construction upon archaic forms of pleading, so as to thereby deprive the plaintiff of his day in court. The judgment should be and is reversed, and a new trial awarded, with costs to the appellant.
Grace, J., concurs.