Manning v. Dallas

Belcher, C. C. — This action was brought to recover the balance due on a mutual, open, and current account, [421]for work and labor alleged to have been performed by plaintiff for defendant between the ninth day of December, 1881, and the tenth day of January, 1886.

The answer denied any indebtedness on a mutual, open, and current account, and alleged payment; and also alleged that so much of the account as accrued “ during the years 1881, 1882, and 1883 has long since been barred, and is barred by the provisions of chapter 3, title 2, part 2, of the Code of Civil Procedure of the state of California.”

The case was tried before a jury, resulting in a verdict and judgment in favor of the plaintiff. The defendant then moved for a new trial, and his motion being denied, appealed from the judgment and order.

Several points are made on the statute of limitations, but they need not be separately considered. The statute was evidently not pleaded. There are only two ways of pleading the statute, one by stating the facts showing the defense, and the other by stating “ generally that the cause of action is barred by the provisions of section [giving the number of the section, and subdivision thereof, if it is so divided, relied upon] of the Code of Civil Procedure.” (Code Civ. Proc., sec. 458.) As neither of these ways was adopted, the attempt to plead it must be treated as altogether a failure. But if the statute had been properly pleaded, the same result must have been reached. There was testimony from which the jury might find, as they did, that the account was mutual, open, and current, and that no part thereof was barred.

At the request of the plaintiff, the court instructed the jury as follows: —

“ Though in this case the plaintiff has brought suit for a certain sum, yet I charge you that you are authorized to bring in a verdict for such a sum as under the evidence you may think his services were reasonably worth, if you find he is entitled to anything.”

[422]It is claimed that this instruction was erroneous, because “the plaintiff bases his right to recover on a contract that he was to receive a certain amount for his services, and not on a quantum meruit.”