St. John v. Consolidated Construction Co.

LAWLOR, J.

The appeal is from the judgment entered in favor of the plaintiff in the sum of three thousand dollars found by the court to be due the plaintiff from the defendant in an action on an open book account for cement furnished.

The complaint, after alleging the corporate existence of the defendant, merely alleges: “That said defendant is indebted to plaintiff on an open book, account for cement furnished to said defendant within four years last past at the city of Los Angeles, county of Los Angeles, state of California, in the sum of three thousand dollars. ” It is then alleged that no part of this sum has been paid, but that the whole thereof is still due, owing and unpaid.

In its answer the defendant denied the indebtedness and alleged that prior to the commencement of this action plaintiff had assigned and transferred all claims held by him against the defendant to the Riverside Portland Cement Company, a corporation, which commenced an action against the defendant in the superior court of Los Angeles County, and judgment was rendered in favor of the plaintiff therein, which was paid and satisfied by this defendant, and that all rights and claims of the plaintiff herein were adjudicated in that action.

The court found that the defendant was at the time of the commencement of the action, and still is, indebted to the plaintiff in the sum of three thousand dollars, and that no part of the sum has been paid; that prior to this action the plaintiff had assigned all claims held by him against the defendant to the Riverside Portland Cement Company, a corporation ; that the said Riverside Portland Cement Company did commence an action against the defendant entitled “Riverside Portland Cement Company, a Corporation, Plaintiff,

v.

Consolidated Construction Company, a Corporation, Defendant. No. B-1098”; that said action was tried and judgment therein rendered in favor of the plaintiff therein and against the defendant herein; that said judgment has become final and has been fully paid and satisfied by the said defendant; that the said sum of three thousand dollars

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sued on in plaintiff’s complaint herein was not included in the judgment in the said action No. B-1098; that the court in that action did not adjudicate the question of the indebtedness of the defendant to the plaintiff in this action; that the claim of the plaintiff herein was in no way passed upon or adjudicated in the former action, and that that action is not a bar to the recovery of the plaintiff herein. It was also found that before the commencement of this action the Biverside Portland Cement Company had reassigned to “A. C. St. John, the plaintiff herein, all right, title, and interest to it assigned in said demand of three thousand dollars by the said A. C. St. John and that at the time of the commencement of this action” the plaintiff was the owner of the claim against the defendant. Judgment was thereupon entered for the sum of three thousand dollars with interest at the rate of seven per cent from the date of the commencement of this action.