Higgins v. Wortell

Cope, J. delivered the opinion of the Court Field, C. J. concurring.

There is no sufficient denial in the answer of the account upon which the plaintiff sues. The pleadings are verified, and the complaint alleges that the defendants are indebted, etc., for goods, wares and merchandise, sold and delivered to them at their request. The answer denies that they are indebted in the amount stated, but specifies no amount in which they admit themselves to be indebted. Ro effect can be given tp such a denial.

The complaint shows that a note was executed for the amount of this indebtedness, but the objection that the account was thereby satisfied and discharged, is not well taken. The note appears to have been executed without any agreement upon the subject, and its only effect was to extend the time of payment. Upon failure to pay, a right of action accrued upon the original demand, as well as upon the" note. The case of Griffith v. Grogan (12 Cal. 317) is conclusive of this point.

The insufficiency of the answer renders it unnecessary to examine the questions raised upon the introduction of evidence. It is proper to say, however, that even if the answer had been sufficient, the objections taken could not be sustained. The certificate of the Rotary to the depositions of SIoss and Crocker, though somewhat informal, complies substantially with the requirements of the statute. It is not expressly stated that the depositions were read to the witnesses before signing, but the fact that they were either read to or examined by them appears by necessary implication. The certificate states that the depositions were corrected by the Rotary under the direction of the witnesses ; and this we deem to be sufficient.

The depositions could not be excluded on the ground that improper questions had been asked upon the examination. The objection on that ground should have been confined to these particular questions ; and whatever errors may have intervened in that respect were waived by failing to take the objection in the proper manner. Judgment affirmed.

A petition for rehearing was filed, calling the attention of the Court to a stipulation in the record, that defendant McDonald might [334]amend Ms answer by inserting after the words “ as is set forth in said complaint,” the words “ or in any other sum whatever.”

Upon this petition Cope, J. delivered the opinion of the Court— Baldwin, J. concurring.