Los Angeles Housing Corp. v. Crowley

[203]

MR. JUSTICE Pro Tem. JAMISON Delivered the Opinion of the Court.

This appeal is from a judgment in favor of the plaintiff. The complaint contains two counts, the first of which alleges in substance that between December 30, 1924, and February 16, 1926, the plaintiff loaned and advanced to defendant on open book account the sum of $6,886.81 upon his promise to pay the same to plaintiff, then after setting out an itemized statement of the dates and amounts so advanced and loaned, it is alleged that no part of said sum so loaned and advanced had been repaid plaintiff, although the same is long past due.

The second account sets forth an account stated between plaintiff and defendant for the money claimed to have been loaned and advanced as alleged in the first count.

The defendant answered the first count by denying that between December 30, 1924, and February 16, 1926, upon his promise to repay the same, plaintiff loaned and advanced on open book account to defendant the sum of $6,886.81, or any other sum, as alleged in the complaint and denied that said sum, or any other sum, was long past due, and denied each of the allegations contained in the second count of the complaint.

The case was set for trial November 3, 1927, but was continued from time to time until February 16, 1928, at which time the court proceeded with the trial and thereupon the defendant moved the court to permit him to file an amended answer. The motion was denied and the plaintiff, having produced evidence in support of the matters set forth in the complaint, the court refused to hear any evidence offered by defendant and rendered judgment for plaintiff. This appeal was brought up on the judgment-roll alone.

The denial in the answer that between December 30, 1924, and February 16, 1926, upon his promise to repay same, plaintiff loaned and advanced to defendant the sum named in the complaint, or any other sum, as alleged in the complaint, constitutes a negative pregnant and is an admission that plaintiff did loan to defendant said sum.

Denial that the act was done on the day named admits that the act was done. (Bates on Pleading, Practice & Forms, 340;

Motor Investment Co.

v.