Williams v. Dennison
Before: Belcher
Synopsis
Statute of Limitations—Fraud not Pleaded — Evidence in Avoidance of Plea of Statute. —In an action for money had and received, where the complaint avers receipt of the money within two years, and the answer denies all the material allegations of the complaint, and alleges that the cause of action is barred by the statute of limitations, the plaintiff may prove and the jury may take into consideration any evidence of concealment of facts, misrepresentations, deceit, or other facts constituting fraud on the part of the defendant which would take the case out of the statute, though the complaint contains no averment as to those matters.
Id. — Pleading — Avoidance of New Matter in Answer—Admissibility of Evidence. — The statement of any new matter in an answer, in avoidance or constituting a defense or counterclaim, is deemed upon the trial to be controverted by the opposite party, and any proper evidence is admissible to meet and overcome such defense.
Id.—New-trial Statement — Specification not Covering Fraud. — A specification “ that the evidence shown that all amounts of money collected by defendant, and all amounts of cash which had been paid him by plaintiff, were more than two years before the commencement of the action, and therefore barred by the statute of limitations,” is not sufficient to raise the question as to whether or not there was any evidence of fraud on the part of the defendant, taking the case out of the statute.
Id.—Evidence — Summary of Book-account — Statement by Attorney as to Footings. — Where one of the witnesses for the plaintiff had produced a summarized statement of the account from the plaintiff’s books, a statement by the plaintiff’s attorney as to the footings, in answer to a question by one of the jurors, could not have been prejudicial.
Belcher, C. This is an action for money had and received. The complaint was filed September 12, 1889, and it alleged that the money sued for — $1,131.73 — was received by the defendant for the use and benefit of the plaintiff on the twenty-eighth day of October, 1887, [541]at the city and. county of San Francisco. The answer denied all the material averments of the complaint, and alleged that the cause of action was barred by the statute of limitations. The case was tried before a jury, and the verdict and judgment were in favor of the plaintiff for the sum of $581.67. From this judgment, and an order denying a new trial, the defendant appeals.
The principal point made for a reversal is, that all the items of plaintiff's demand, except seventy dollars, were received by defendant more than two years before the commencement of the action, and hence their recovery was barred by the statute.
It appears that in 1887 the plaintiff was a street contractor, and the defendant was employed by him to solicit contracts and to collect the moneys due thereon, and that he was to receive for his services a certain percentage of the contract prices. Under this arrangement, defendant proceeded to get contracts and to make collections until the latter part of September, 1887.
At the trial plaintiff offered in evidence several statements made by defendant of his collections, but attached to them were no dates showing when any of the collections were made. Plaintiff also introduced evidence tending to show that defendant collected and failed to account for more money, after deducting his commissions, than was found by the verdict to be due from him.
When the plaintiff rosted, the defendant first introduced in evidence a bill of particulars furnished by the plaintiff, commencing as follows: “ The following are the items of the account or indebtedness alleged in plaintiff's complaint in above-entitled action. All the amounts received by defendant were received by him at the city and county of San Francisco within tw'o years prior to the commencement of said action.'' The items of cash received were then stated, but without dates, aggregating $1,131.73, after deducting the credits. Defendant also offered in evidence certain pages of his ledger and block-book, “showing the several amounts collected by him under these several contracts, the dates of each payment, [542]
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