O'Brien v. Big Casino Gold Mining Co.

HART, J.

The plaintiff brought this action to recover the sum of $500, alleged to be due him from the defendant, on an account stated, for services performed in the capacity of superintendent of the mining operations of the corporation.

The answer, after denying the alleged indebtedness, sets up as a special defense the bar of the statute of limitations (Code Civ. Proc., see. 339), and also the further defense that, by reason of the alleged carelessness and negligence of the plaintiff as superintendent of defendant’s properties, the latter suffered the loss, through robbery, of the product of a pocket of gold found in defendant’s mine, of the alleged value of more than $3,000, and that defendant had therefore sustained damages in the sum of $3,000 because of such alleged carelessness and culpable negligence of plaintiff.

The last-mentioned defense was not pressed at the trial, no evidence having been offered in its support, and therefore further consideration of the same may be dismissed.

The cause was tried by the court, a jury having been waived by both parties, and judgment awarded the plaintiff for the Bum sued for.

[285]

This appeal is from the judgment and order denying the defendant a new trial.

The principal point urged by the appellant on this appeal is that the respondent’s right of action was, at the time of the filing of his complaint, barred by the provisions of section 339 of the Code of Civil Procedure, prescribing a limitation of two years within which an action may be commenced upon a contract', obligation or liability not founded upon an instrument of writing, etc. No serious effort, which could properly be interposed under the issues tendered by the pleadings, seems to have been made to dispute the validity and correctness of plaintiff’s claim.

The contention of the plaintiff, in response to the special plea in bar, is twofold, to wit: First—That the defendant rendered to the plaintiff an account stated in writing before the same or the original account from which the account stated originated was barred by the statute. Secondly—That the defendant, being a foreign corporation doing business in this state, failed to show at the trial that it had filed with the Secretary of State a designation of some person residing within the state upon whom process issued by authority of or under any law of this state may be served (Civ. Code, sec. 405), and that, therefore, the defendant cannot invoke the benefit of the laws of this state limiting the time for the commencement of civil actions. (Civ. Code, sec. 406.)