When the plaintiff rested he had put in evidence the account (exhibit J.), with proof that defendant had examined it and said it was correct. That made a good strong prima facie case, and the question as to whether the contract price was express or implied became wholly immaterial. In a complaint for goods sold and delivered, the plaintiff has a perfect right to aver an express contract to pay the price charged and also that the goods were reasonably worth the prices charged.

It is true that the complaint is a slipshod document, and, before a new trial, it should be amended; but when the account was put in evidence, with proof showing that defendant had examined it and admitted that it was correct, it virtually became a part of the complaint, and, if necessary, the complaint should have been amended to conform to the fact. This principle is too clear for any discussion.

Judgment reversed and case remanded forthwith.

CHRISTIANSON, Ch. J. (concurring specially). I agree with Judge Robinson that the trial court erred in dismissing this action. The com plaint alleged: "That on and between the 16th day of June, 1916, and the 15th day of May, 1917, it (plaintiff) sold and delivered to defendant a large amount of goods, wares, and merchandise, consisting of furniture and accessories, upon which there was a balance due on January 1, 1918, of $566.95; that the said sum, although duly demanded, has not been paid, nor has any part thereof." The answer, among other things, averred: "Defendant admits the purchase of certain articles from the plaintiff, but denies that the amount due and owing the plaintiff is the amount stated in the complaint." Clearly this paragraph of the answer was a negative pregnant and did not raise an issue as to the amount due the plaintiff from the defendant. 31 Cyc. 204, 225; Pom. Code Rem. 3d ed. §§ 618-621. In view of the pleadings, the question of variance between plaintiff's pleading and proof did not really exist. For there was in fact no denial that there was a balance due the plaintiff of $566.95 upon the furniture, except in so far as such indebtedness might be deemed denied by the averments of the counterclaims. But the burden of proving the affirmative matters set forth by way of counterclaim was upon the defendant. Hence, it was error to dismiss the action on the ground that plaintiff had failed to establish the cause of action set forth in the complaint.

I do not, however, agree with Judge Robinson that there may be a recovery upon an express contract under an allegation of implied contract. The contrary rule has been announced by the decisions of this court (Lowe v. Jensen, 22 N. D. 148, 132 N. W. 661; Yancey v. Boyce, 28 N. D. 187, 148 N. W. 539, Ann. Cas. 1916E, 258), and has the support of the great weight of authority (9 Cyc. 749; Pom. Code Rem. 4th ed. § 438).

BIRDZELL, J., concurs.

BRONSON, J. (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

44 N. D.-4.

whereas 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 "indebitatus 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 inartificially 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

and the 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.

GILFORD YORK, Plaintiff, v. GENERAL UTILITY CORPORATION and James Rheinfrank, Defendants.

Electricity

(176 N. W. 352.)

verdict of jury sustained by the evidence.

1. In an action by the plaintiff against the defendants, to recover damages for injuries sustained on account of the negligence of the defendants in the operation of an electric light plant, and the instrumentalities connected therewith, whereby the plaintiff was severely injured and burned, and one of his hands thereby crippled, and the question of defendants' negligence and plaintiff's contributory negligence and assumption of risk having been submitted to a jury, and the jury having returned a verdict in plaintiff's favor in the sum of $15,000,-it is held, upon an examination of the record, that the verdict is sustained by the evidence.

2. The plaintiff was called to one W. J. Payne's residence to make repairs upon the electric wires therein. Ordinarily, such wires contained a voltage of 110. By reason of defendants' negligence, two primary wires rested upon an upper crossarm on a pole, loosely, and were uninsulated. A secondary wire, which was on the second crossarm, extended upward and immediately under the two unfastened primary wires, and then led to certain houses in the vicin ity, to which it conveyed electric current; among others, being the Payne house.

Each of the primary wires contained a voltage of 2,300. By reason of the close proximity to the secondary wire which passed under and very near to them, and, by reason of the noninsulation of the primary wires, the voltage of 2,300 contained in such wires was transmitted to the secondary wire, and, by

it, transmitted to the Payne residence, where plaintiff, upon proceeding to make the repairs, and in attempting to take hold of one of the disconnected wires in the basement of the Payne residence, received the excessive voltage of 2,300.

If plaintiff, before going to the basement to make the repairs, had turned off the switch, he would not have been injured. When he went to the basement, he placed a dry board under his feet before starting to make the repairs. If there had been only 110 volts in the wires to be repaired, instead of 2,300, the use of the board would have been a safe method.

The defendants claim that plaintiff had the choice of two methods, one of which was dangerous and the other safe, and that he chose the dangerous method. The evidence shows that the method selected by plaintiff was safe had the wires contained only 110 volts. It further shows that that method became unsafe by reason of the negligence of the defendants in failing to properly insulate the primary wires in question.

Special verdict

its of the case.

questions contained in special verdict held to cover mer

3. It is further held, that the matters involved in the case, which were, by the court, submitted to the jury by questions contained in a special verdict, involved and covered the merits of the case.

Opinion filed December 27, 1919.

Appeal from the District Court of Eddy County, C. W. Buttz, Judge.

Judgment affirmed.

Lawrence & Murphy and Watson, Young, & Conmy, for defendants and appellants.

"If two ways are open to a person to use, one safe and the other dangerous, the choice of the dangerous way, with knowledge of the danger, constitutes contributory negligence." 29 Cyc. 520.

"In every case there is a preliminary question for the judge whether there is evidence from which the jury may properly proceed to find a verdict." Anderson v. Phillips, 160 N. W. 315.

There is no liability of the defendant Rheinfrank to any person because of the method of construction of this defendant company of its business instrumentalities. There is no question about the law on that point. Floyt v. Shenango Furnace Co. 186 Fed. 539; Bryce v. Southern R. Co. 125 Fed. 959; Mechem, Agency, $$ 560, 573; Greenberg v. Whitcomb Lumber Co. 90 Wis. 231, 28 L.R.A. 439, 63 N. W. 93; Murray v. Usher, 117 N. Y. 542; Drake v. Hagan, 108 Tenn. 265, 67 S. W. 470.