Boehmke v. Westfall

CARY, P. J.

From a judgment against her in the sum of $402.82 defendant prosecutes this appeal.

The complaint is as follows:

[755]

“Plaintiff complains of defendant and for cause of action alleges: (1) That at sundry times between the first day of January, 1924, and the 31st day of December, 1926, the defendant received from plaintiff the sum of Four Hundred Two Dollars and eighty-two cents ($402.82) for the use and benefit of the defendant, which sum the defendant agreed to return or to repay the plaintiff upon demand. (2) That before the commencement of this action the plaintiff herein demanded payment from the defendant of said sum of Four Hundred Two Dollars and eighty-two cents ($402.82). (3) That defendant has failed and refused to pay

defendant

said sum of Four Hundred Two Dollars and eighty-two cents ($402.82) or any part thereof. Wherefore, plaintiff demands judgment against the defendant in the sum of Four Hundred Two Dollars and eighty-two cents ($402.82).”

The amended answer denied all the allegations of the complaint and alleged that the action was barred by the statute of limitations, Code of Civil Procedure, section 339, subdivision 1.

Briefly summarized the evidence is as follows: Plaintiff was the daughter of defendant. She testified that, beginning with November of 1924, she had been loaning defendant money and that each time as she loaned the money she would immediately enter the amount, etc., in a little book ' which she kept for that purpose. This account, introduced by plaintiff without objection, is as follows:

[756]

She further testified that defendant had asked her on three different occasions after the last loan how much she owed, and when informed that the amount was $402.82 had made no objection to that figure and had promised to pay. This latter was brought out on cross-examination by defendant’s counsel. Defendant testified that plaintiff had loaned her about $200, although she was not at all clear on the' amount, that plaintiff had told her she had the amount marked down in her little book, that she—defendant—had never paid plaintiff back anything, but had trusted plaintiff to keep accurate account; that she—defendant—did not recall just what amount plaintiff said she owed, it might have been a thousand dollars for all that she knew, plaintiff had asked her to sign a note for the amount sued upon and she had refused. In rebuttal plaintiff testified that defendant, when requested to sign the note, had raised no objection to the amount, but had merely said she would not sign any note.