Caulfield v. Sanders

In this case, the answer denied the allegations of indebtedness as to time, amount, and work in the very words of the complaint: Held, that the answer raised an immaterial issue upon these particulars, instead of meeting the substantial matter averred.

Where the action is upon an account, and defendant in liis answer avers, in the form of reasons for refusing payment when the account was presented to him before suit, that the principal portion was composed of items for printing done for clients, for which he never became personally bound; and that the portion for which he was personally liable “ has, to the best of his knowledge and belief,” been paid and satisfied; and therefore he pleads payment of the same: Held, that this is in substance a denial of indebtedness for a portion of the account, and a plea of payment for the balance; and that it is in effect an admission as to that balance of an original liability, and throws the burden of establishing payment upon the defendant.

To suit on an account, defendant averred that “ each and every item of said account prior to the tenth day of March, 1859, is barred by time; and he pleads and relies upon the statute of the State of California entitled ‘ An Act defining the time of commencing civil actions/ approved April 22d, 1850, in bar of any recovery in said actionHeld, that this plea is fatally defective, because an averment of a conclusion of law; that a plea of the Statute of Limitations must aver the facts which bring the demand within the operation of the statute—as that the alleged cause of action has not accrued within certain designated years previous to filing the complaint.

No defense to an action on account assigned to plaintiff, that the account was not assigned to plaintiff until after the time alleged in the complaint, or that it was assigned for a nominal consideration by one of two partners without consulting his copartners. These matters do not affect defendant’s liability.

In suit by the assignee of a book account, the assignor is a competent witness to prove to the Court the loss of the book of original entries, as preliminary to the introduction of secondary evidence of its contents.

Assignors of unliquidated demands are not placed, with reference to incidental matters auxiliary to the trial of a cause, in any worse position than the parties to the record.

The proof in this case of the loss of the book of original entries was not sufficient to let in secondary evidence of its contents, because such proof did not show who last had possession of the book, or any liona fide and diligent search for it.

In suit against an attorney, for printing advertisements, plaintiff having proved the loss of the “ advertising book ”—that is, the book of original entries : Held, that the ledger to which these entries were transferred was admissible, in connection with the newspaper containing the advertisements, to show what items were for matters in which defendant acted as attorney simply, and what items were for matters in which he was personally interested—the point under the pleadings being, what items in the advertisements were for the attorney personally, and not for his clients.