Cordier v. Schloss

Baldwin J. delivered the opinion of the Court Field C. J. concurring.

This case was before us at the January term, 1859, (12 Cal. 146). The case was presented, when first here, upon the question whether the failure of the defendants below, who were plaintiffs in the confessed judgment against Kohn & Co., to give a more particular account of the indebtedness confessed, absolutely avoided the judgment—the learned Judge of the Fourth District holding the statement and affidavit to be fatally defective, and, on that account, the judgment a nullity. In our decision on the case (12 Cal. 147) we reversed the judgment upon this point; but the effect of the reversal was to leave the case open upon the proofs which the parties might present upon the trial on the issue of fraud. We recognized the principle affirmed in the case of Richards v. McMillan, (6 Cal. 147) that the want of a statement fulfilling the requirements of the statute in the description of the indebtedness confessed was prima facie evidence of fraud. This decision does not seem to be satisfactory to the counsel on either side, and we confess, if the case wore res integra, we should be disposed to hold a rule which would at least have the merit of certainty and be easy of application. But we have not power, if we had the disposition, to establish a new rule for this case, but must adhere to the princi[581]ple before announced. Indeed, we think it better unreservedly to hold the decision in Richards v. McMillan as the settled exposition of the statute.

We think the affidavit defective. The statute, sections 374-5-6 of the Practice Act, requires: 2d, that the statement “ shall state concisely the facts oat of which the indebtedness arose, and shall show that the sum confessed therefor is justly due or to become due.” The statement shows that the plaintiffs are the owners of a note, and that the note was given for goods sold and delivered by plaintiffs to the defendants, and money had and received by defendants ; that the consideration for said note was said money and goods sold by plaintiffs to and received by them the defendants aforesaid.” The New York cases are overwhelming to the point that the mere statement that the indebtedness is by note, etc., is not sufficient. (See cases cited in respondent’s brief.) The auxiliary statement is likewise defective ; it does not show the kind or quantity or price of the goods, or time of sale, or when the money was received, or under what circumstances, nor how much indebtedness for money and how much for goods. The object of the statute in requiring this statement is to put the creditors upon the track of inquiry, and to enable them to discover the fraud, if any; and to discourage perjury by requiring a definite and particular account of the transaction—which might thus be exposed if it were fraudulent. It is obvious that a vague statement of this sort subserves none of the purposes within the contemplation of the Act. Without asserting that each one of the various defects referred to would be fatal to the judgment, we think that all of them together are. Indeed, the failure to state the amounts due severally for goods and for money itself would be fatal, as we have held, such an averment insufficient in a common complaint.