National Lumber Co. v. Tejunga Valley Rock Co.

ALLEN, P. J.

In what is hereinafter said the respondent Tejunga Valley Rock Company is denominated the “Valley Company,” while the respondent Tejunga Rock Company is mentioned as the “Rock Company.”

Plaintiff by its complaint filed January 20, 1911, declared upon five alleged causes of action, the first being that on March 14, 1908, plaintiff sold and delivered to defendant Valley Company a quantity of railroad ties under an agreement on the part of said defendant to pay therefor the sum of $1,639.20; that afterward the Rock Company took possession of said ties, agreeing to pay plaintiff therefor. The second cause of action alleged the sale and delivery by plaintiff to both companies, while the fifth cause of action alleged

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facts tending to show a conversion of the ties by both defendants, and the fourth cause of action declared against both companies upon a stated account rendered in 1910. The Valley Company by its answer denies all of the allegations of the complaint. No answer of the Rock Company appears in the record, other than an amendment to an answer which amendment pleads the bar of the statute. It refers, however, to an answer on file. The findings of the court are in favor of the plaintiff as to the alleged sale and delivery to the Valley Company, but in favor of defendants upon all other issues; and the court further finds that the cause of action arising from the sale was barred at the commencement of the action by section 339 of the Code of Civil Procedure. Judgment was entered in favor of both corporations defendant. Prom this judgment, and from an order denying a new trial, plaintiff appeals upon a bill of exceptions. This bill of exceptions shows that the parties assumed upon the trial that an issue was presented by both déféndants, and upon that assumption evidence was introduced by the parties in respect thereto, and the court in its findings so considered the case as thus presented; in fact, appellant raises no question as to the omission of the Rock Company in presenting issue. Upon this appeal we will therefore consider that the case was tried regularly and after all material issues had been tendered.

Appellant’s principal contention is that there is ño evidence supporting the finding that no agreement was made by the Rock Company to pay plaintiff when it took possession of said ties. The bill of exceptions develops that evidence' was received tending to show the following facts: That the sale and delivery of the ties mentioned by plaintiff to the Valley Company was upon sixty days’ time. A cause of action ac-cured by virtue of the sale in favor of plaintiff and against the Valley Company May 17, 1908. When the sale was made plaintiff’s bookkeeper made an entry thereof upon its books, and after the maturity of the claim, and after October, 1908, rendered monthly statements to the Valley Company which it conceded to be correct. In April, 1908, the 'Rock Company was incorporated with a capital stock of two hundred thousand dollars, represented by two hundred thousand shares of one dollar each, and in May following one Peckham