Stearns v. Martin

Appeal from the First Judicial District.

This was an action on a promissory note of the defendants, in favor of plaintiffs, for $8,000, subject to a credit of $8,800. The defendants, in their answer, admitted the making of the note, but alleged it was given by Martin, as principal, and Wilson as surety, with the knowledge of the plaintiff; that it was given for the purchase, by the defendant Martin, from the plaintiff, October 10th, 1852, of five hundred head of horned cattle, “ Novellas,” of an excellent quality and size, and about three years old, which the plaintiff represented he had then on his ranch, near Los Angeles, and which he agreed to deliver to said Martin immediately, so that he could drive them north before the rainy season.

The answer charged that the plaintiff only [228] delivered one hundred and fifty * cattle, for which defendant Martin had paid, and that they were of an inferior kind, and had refused to allow the defendant to pick out the balance, according to contract.

The answer set up a counter claim on the part of the defendant Martin, in the damages sustained by the non-fulfilment, by the plaintiff, of the contract.

Upon the trial the defendants introduced a witness, Ozias Morgan, who testified that he and the defendant Martin, were partners in the purchase of the cattle mentioned in the defendant’s answer, whereupon the plaintiff objected to any proof concerning cattle purchased jointly by Martin and Morgan, inasmuch as the counter claim of Martin was founded on a single and separate contract, as set out in the pleadings entered into between Martin and the plaintiff. The objection was sustained by the Court. The defendants, with the leave of the Court, then filed an amended answer and counter claim, in which they state, that the contract for the sale of cattle was made and entered into between the plaintiff and the defendant Martin and one O. Morgan, and that, subsequently to the contract, Martin had acquired all the interest of said Morgan in the contract, and the rights flowing therefrom.

The plaintiff demurred to the amended answer, and assigned the following reasons: 1st. Because the amended answer did not state at what time, nor for what consideration, the assignment was made by Morgan to Martin, nor whether the assignment was verbal or written, nor what was the nature of the demand assigned, nor that the plaintiff had notice of it, 2d. Because the defendant Martin cannot set up a demand for unliquidated damages which he holds against the plaintiff as assignee, against the demand upon which this suit is brought, as there is no allegation that the defendant Wilson, has any interest in the contract so assigned.

The Court sustained the demurrer. The defendant, with the leave of the Court, filed another amended .answer and paid the costs. But the Court ordered that the second amended answer should be disregarded. To which ruling the defendants excepted.