Wise v. Hogan

Works, J. This cause was affirmed upon an opinion of the commission. A rehearing was granted, and further argument has been heard. In the former opinion, the cause was affirmed on the ground, stated in general terms, that the complaint was ambiguous and uncertain, and the demurrer thereto, on that ground, properly sustained. The objection made to the complaint in this respect is, in substance, that the indebtedness is alleged in general terms, the items and amounts not being specifically stated.

Upon further consideration, we are of the opinion that this objection was not well taken. It has been repeatedly held by this court that a party suing upon an account need not set forth specifically the items of the indebtedness, and the code so provides. (Code Civ. Proc., sec. 454; Providence Tool Co. v. Prader, 32 Cal. 634; 91 Am. Dec. 598; Tompkins v. Mahoney, 32 Cal. 231. See also McKinney v. McKinney, 12 How. Pr. 23.)

If the defendant is not satisfied with the general allegation of indebtedness, the code expressly provides a remedy. He may, within five days, demand a copy of. the plaintiff’s account. (Code Civ. Proc., sec. 454.)

If he fails to avail himself of the right thus given him, he cannot be heard to say that the complaint is insufficient on the ground of uncertainty in that respect, (Providence Tool Co. v. Prader, supra.)

We know of no reason why an administrator should not be bound by this rule of practice.

It is further urged against the sufficiency of the complaint that it does not show such a claim as the administrator could have allowed, for the reason that the allegation being that the services were rendered “between the first day of January, 1870, and the eleventh day of October, 1883,” the whole or a part of the claim might [187]have been barred by the statute of limitations, at the time the claim was presented for allowance.

An administrator is expressly forbidden by statute to allow a claim that is barred by the statute of limitations. (Code Civ. Proc., see. 1499.)

This claim did not appear on its face to be barred. The administrator might have refused to allow it on the ground that the statute had in fact run against it. If upon suit being brought, it appeared that the claim was in fact barred, his refusal to allow it would thus be justified, and the claimant could not recover. But this is a matter to be determined at the trial, the claim not appearing on its face to have been barred when presented. The fact that it did not show whether it was or was not barred would not defeat a recovery. Therefore this objection to the complaint was not well taken.