Union Lumber Co. v. J. W. Schouten & Co.

KERRIGAN, J.

This is an appeal by the defendant from the judgment and from an order denying its motion for a new trial.

These are the facts of the case: For several years prior to the eighteenth day of April, 1906, the plaintiff and defendant were engaged in the lumber business, plaintiff as a manufacturer, and defendant as a retailer in the San Francisco market. Prior to the eleventh day of April, 1906, the plaintiff had sold the defendant at various times large quantities of lumber, and on that date sold and delivered to it a further quantity amounting in value to the sum of $1121.06. June 9, 1906, the defendant, being unable to meet its obligations as they matured, made an assignment for the benefit of its creditors of its entire business. About the time of the assignment, the plaintiff presented its claim to the committee of creditors to whom the assignment had been made, for the sum

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of $5553.53, which was $1121.06 less than the defendant actually owed plaintiff. This mistake and omission occurred by reason of the fact, so it was alleged and proved, that plaintiff’s books were not completely written up or posted on said ninth day of June, 1906, owing to the confusion resulting from the fire and earthquake .on the eighteenth day of April of that year. The creditors’ committee paid plaintiff the sum of $5553.53, and thereafter, the plaintiff, learning of the mistake just referred to, and the defendant having again resumed control of its business requested of defendant payment of said sum of $1121.06, which payment the defendant having refused to make, this action was commenced, resulting in the judgment indicated.

The original complaint was for goods sold and delivered; and subsequently, a few months before trial, plaintiff, over an objection of the defendant, filed an amended complaint, setting forth two causes of action, the first being identical with that pleaded in the original complaint, and the second alleging an account stated, that there was an error therein, subsequently discovered, amounting to the sum claimed to be due under the first cause of action, and praying for equitable relief and judgment for said sum.

Defendant now asserts that permission to file the amended complaint containing the second cause of action should have been denied, for the reason, so it is stated, that it was wholly a new and different cause of action, and also for the reason that it appears that it was filed more than two years after the filing of the original complaint.