Landis v. Morrissey

Thornton, J. The question in this case arises on an offer to introduce certain testimony. The point presented is to be determined upon the allegations of the complaint and the denials of the answer. There are several counts in the complaint, all of which were answered, but as the counts and the answers to them are the same as to the point to be decided, we shall present here only one of each.

The plaintiffs aver: —

“1. That during all the several periods of time hereinafter stated, said plaintiffs were, and still are, partners, doing business in said city and county of San Francisco, under the firm name of Landis & Jacoby; and during said several periods of time up to the 20th of April, 1882, the defendant and one S. Boeh were partners, doing business in said city under the firm name of Boeh & Morrissey; that on or about the 20th of April, 1882, at San Francisco, said S. Boeh died, leaving defendant the sole surviving partner of said firm.

“2. That, to wit, at said city and county of San Francisco, state of California, within a period of six months prior to the commencement of this action, and prior to [85]the death of said S. Boeh, plaintiffs sold and delivered to said partnership, of which defendant is sole survivor, as hereinbefore alleged, at their special instance and request, goods, wares, and merchandise, at agreed prices, amounting to the sum of two hundred and eighty-eight dollars and seventy-one cents ($288.71); that said goods, wares, and merchandise were reasonably worth said sum, which said sum they promised to pay whenever thereunto requested, but though often thereunto requested, they have not, nor has either of them, paid any part of the same, and the whole amount thereof remains due and unpaid.”

The answer of defendant to this count is as follows: —

“Denies that plaintiffs sold or delivered to said partnership, of which this defendant is survivor, in manner and form in said second count alleged, the goods, wares, or merchandise therein mentioned, or any part thereof, or for the agreed prices in said second count alleged, or for any agreed price or prices; and denies that said partnership, at the time or place in said second count alleged, or any time or place, agreed to pay the sum in said second count specified, or any sum, to said plaintiffs whenever thereunto requested.”

On the trial, as stated in the bill of exceptions, to prove their case, and each and every count in their complaint contained, the plaintiffs introduced witnesses, and upon the cross-examination of these witnesses, and also as part of his own case, the defendant offered to prove that the goods, wares, and merchandise alleged in each count of the complaint to have been sold to defendant and his deceased partner were purchased by the firm of Boeh & Morrissey from the plaintiffs, upon a credit of sixty days, the period of which had not expired when this action was commenced.