The complaint in this action alleges “that defendant is indebted to the plaintiff in the sum of $321.23 upon an account *77for goods sold and delivered to him at his instance and request” between certain dates. The defendant demurred on the ground that complaint stated no cause of action. The court below overruled the demurrer, and defendant appealed.
This is an attempt to plead in the common-law form of indebitatus assumpsit, but the common-law form required the declaration to state that the defendant is indebted to plaintiff in a sum named for goods sold by the plaintiff to the defendant. This complaint does not allege that the goods were sold by the plaintiff, and such defect was fatal at common law. Chit. Pl. 33, note c (16th Am. Ed.), and Fenton v. Ellis, 6 Taunt. 192, cited therein. See, also, Cathrow v. Hagger, 8 East, 106. It is true that these were cases where the defect was in the affidavit for the arrest of the defendant, but the principle is the same, and Cliitty so regards in citing them as authority as to the effect of a similar defect in the declaration.
“In assumpsit or covenant for the payment of money the defendant may be arrested as a matter of course on an affidavit shortly stating the cause of action.” 1 Tidd, Pr. 171. The learned court below states in his memorandum that this complaint is exactly similar to that in Abadie v. Carrillo, 32 Cal. 172, which was referred to as authority by this court in Solomon v. Vinson, 31 Minn. 205, (17 N. W. 304.) In this he is mistaken, and has undoubtedly been misled by the syllabus in the California case, but the statement of the case shows that the complaint was according to the common-law form.
We are of the opinion that the courts in the code states have •sacrificed the principles of code pleading more than they ought to have done in adopting this common-law formula at all, and that we should not outdo the common law itself by reducing the formula still more, and making it still more in conflict with code principles. The complaint must at least be sufficient at common law, which it is not.
The order appealed from is reversed.
Buck, J., absent, took no part.(Opinion published 58 N. W. 828.)
Application for reargument denied April 24, 1894