Hammond Lumber Co. v. Henry

PRESTON (H. L.), J.,

pro tem.

This is an appeal by the defendant Louis Henry from two judgments entered against him in favor of the plaintiff and respondent Hammond Lumber Company.

Respondent Hammond Lumber Company brought an action against appellant on February 23, 1922, to foreclose a mechanic’s lien for the sum of $868.63. Respondent, on June 15, 1922, brought another action against appellant seeking to recover the sum of $3,614.96, which sum also includes the amount claimed in the mechanic’s lien case.

The complaint in the last action is set forth in three causes of action; the first for goods sold and delivered, the second on an open book account and the third on an account stated between the parties.

The answer in the last case, as originally filed, did not constitute a denial at all, and the court permitted an amendment to the answer during the trial, which constituted, in effect, a general denial by appellant that any sum whatever was due to the plaintiff.

Appellant also filed a cross-complaint in the second case, alleging that he had been damaged on account of respondent’s failure to deliver the lumber and materials promptly, etc.

By stipulation of the parties both cases were tried together by a judge

pro tempore,

sitting without a jury, but

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separate findings and judgments were made and entered in each case.

In the mechanic’s lien case, judgment was entered for plaintiff in the sum of $558.75 and costs, but provided as follows: “That all sums recovered herein shall also be applied as credit on said judgment in action number 107402 when paid.”

In the other ease, which is numbered 107402, judgment was entered in favor of plaintiff in the sum of $2,167.80 and costs.

Appellant made a motion for a new trial before Hon. F. C. Valentine, judge of the superior court of Los Angeles County, which was denied.