Hill v. Haskin

By the Court: After setting out the contract sued upon, and stating the facts in respect to the purchase of the stocks which constituted the subject-matter of the joint venture between the plaintiff and defendant, and averring the failure of the enterprise, the complaint alleges, “That after said money became due, and before the commencement of this action, plaintiff made due demand of said defendant for said sum of money; but the defendant has not paid the same, or any part thereof.” One of the defenses relied upon is the Statute of Limitations; and on the former appeal (42 Cal. 160), we held that the plaintiff’s right to maintain the action did not occur until he had first offered to account with the defendant, of and concerning the stocks in the hands of the plaintiff; and until such offer to account, he could not legally demand payment of the balance due from the defendant. On the present appeal, the defendant contends: 1st, that the complaint contains no sufficient averment of an offer to account; and 2d, if the complaint be sufficient in this particular, that there was no proof at the trial of such offer.

If a special demurrer had been interposed to the complaint on the ground that it does not state an offer to account with the requisite certainty and. directness, it would probably have been sustained. But inasmuch as the plaintiff could not legally demand payment of the defendant until he had first offered to account, the averment that “he made due demand ” is a sufficient allegation in. the absence of a special demurrer to let in proof of the offer to account. It [178]was but a defective statement of a material fact. Instead of alleging the fact directly it was stated only inferentially, and might have been demurred to on this ground. The defect could then have been cured by an amendment. But having proceeded to trial, without interposing the objections, it was too late afterwards for the defendant to raise the point that the offer to account ought to have been averred with greater precision and directness.

On the second point the court finds that in May, 1865— less than four years next before the commencement of the action—the plaintiff for the first time offered to account with the defendant concerning the stocks, and demanded payment of the balance due; but that the defendant refused “to have or make ” said accounting, and has never paid the balance, or any part of it. This finding is assailed on the ground that it was not justified by the evidence, but, without going into detail, it will suffice to say that we think there ivas sufficient evidence to support the finding.