Third Street Improvement Co. v. McLelland

KERRIGAN, J.

This is an appeal -from a judgment of nonsuit.' The action was for money had and received by the defendants for the use and benefit of the plaintiff. The answers of the defendants denied the receipt of the money.

Upon the trial of the case the secretary of the corporation plaintiff testified that the defendants, as copartners, erected a

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building for the plaintiff in San Francisco, and that at or about the time of the completion of the building there was an agreement of settlement in writing between the parties. This agreement was introduced in evidence and consisted of an itemization of sums paid by plaintiff to the defendants and' an agreement as to the mode of payment of the balance still remaining due, the amount of which was found and fixed by the writing. The witness testified that the balance so agreed upon was subsequently paid. He also testified that about four months prior to entering into the written settlement the plaintiff paid to the defendants the sum of five hundred dollars which, by inadvertence, was not entered in the books of the plaintiff, and consequently was not taken into consideration in the negotiations for settlement, nor had the plaintiff received credit for the same. This testimony was objected to by the defendants, but was admitted by the court subject to a later ruling; and upon the plaintiff closing its case "the defendants renewed their objection to and moved to strike out all testimony relating to the payment of this five hundred dollars upon the ground that it was incompetent, irrelevant, and immaterial; that the said payment was made prior to the making of the account stated; that it was an attempt to correct the written account stated by parol in the absence of proper pleading for that purpose; and that the account stated was conclusive upon all matters embraced within it, and moved for a nonsuit upon the ground that plaintiff had failed to prove the allegations of its complaint. The court granted the motion to strike out and also the motion for a nonsuit, and as before stated, it is from the judgment entered thereupon that plaintiff appeals.

After argument of the motion to strike out and for an order of nonsuit the plaintiff asked leave to amend its complaint by adding a count thereto in which it would allege the mistake of fact in the agreement of settlement, and pray that the contract be reformed, and for the recovery of the five hundred dollars overpaid. This motion was also denied.