McCarthy v. Mt. Tecarte Land & Water Co.
Before: Henshaw
Synopsis
Assignment op Claim—Notice—Subsequent Settlement with Assignor. Where a claim for goods, wares, and merchandise, sold and delivered to a corporation, has been assigned to another person, and notice of the assignment given to the corporation, a subsequent settlement of accounts with the assignor cannot relieve the corporation from its liability for the debt previously transferred to the assignee.
Assumpsit—Bill op Particulars—Time op Delivery—Objection to Evidence.—Where a demand is made upon the plaintiff in an action of assumpsit for a bill of particulars, and such bill is delivered six days after the demand, and more than forty days before the trial an objection made upon the trial to the reception of any evidence upon the ground that the bill of particulars had not been served within five days after the demand, no objection having been made to the sufficiency of the account as furnished, the objection to the reception of evidence is properly overruled.
Id.—Construction op Code—Discretion op Court.—The object of section 454 of the Code of Civil Procedure, requiring a party to deliver to his adversary within five days after the demand a copy of an account sued upon, or be precluded from giving evidence thereof, is to protect the adverse party from embarrassment upon the trial, by enabling him to demand and obtain in advance a detailed statement of the items charged against him, and the trial court has a sound discretion whether to exact the penalty of precluding the plaintiff from giving evidence thereof or not; and if the demand is not complied with, the prescribed penalty may be exacted for refusal or gross neglect; but if the demand» ant receives a sufficient copy long enough before the trial to enable him to examine it and prepare his defense, so far as he is concerned the statute has fulfilled its usefulness.
Id.—Objection Previous to Trial.—Where a party receiving a bill of particulars, which is for any reason objectionable, proposes to object to the introduction of evidence thereunder, he may not wait until the trial, but previous to the trial must move for and obtain an order excluding the evidence.
Henshaw, J. Appeals from the judgment and from the order denying a new trial.
Plaintiff averred that between the twenty-first day of August and the twenty-fourth day of November, 1891, the firm of J. Harvey McCarthy & Co. had at the request of defendant sold and delivered to it goods, wares, merchandise, and moneys, of the value of two thousand five hundred dollars; that the interest of the .firm in and to said claim and account had been assigned to plaintiff upon November 24, 1891; that thereafter defendant paid to plaintiff on said account the sum of two hundred and fifty dollars, and no more. Judgment was asked for the unpaid amount, with interest. Defendant answered, denying that it ever ordered or received the merchandise or moneys, or any part thereof. It also denied that it had paid two hundred and fifty dollars, or any other sum.
The court found in accordance with the complaint that goods, etc., of the value of two thousand five hun[691]dred dollars had been delivered to defendant, and this finding is not attacked.
It found the payment by defendant to plaintiff of two hundred and fifty dollars, and no more. This finding is attacked. The basis of attack is evidence of a settlement had between defendant and J. Harvey McCarthy, a partner of the firm, which settlement it is claimed included all of the items, matters, and things here in controversy. It appears that J. Harvey McCarthy had an action pending against this defendant for goods and merchandise sold, in which he demanded judgment for twelve hundred dollars. A settlement was had between him and the company, and upon a bundle of accounts (some of which embrace the items here in. litigation) he signed this receipt: “ Payment and full satisfaction of balance due on within accounts, and also of all other demands included in the complaint in the action entitled J. Harvey McCarthy v. Mt. Tecarte Land and Water Company, No. 6811.”
But McCarthy testified that he did not examine the bills; that he thought the settlement embraced only the items in litigation in the action; and that he so expressed himself to the defendant’s attorney, saying at the same time that he had previously assigned to his father (this plaintiff) a claim for two thousand five hundred dollars. The language of the receipt is not at variance with this evidence. Moreover, this settlement was had in 1892. The assignment to plaintiff was executed in 1891, and the directors of the defendant corporation were informed of it at one of their regular meetings shortly after it was made. Under these circumstances a settlement with J. Harvey McCarthy would not relieve defendant from its liability for the debt previously transferred to plaintiff. (Gilman v. Curtis, 66 Cal. 116; Works v. Merritt, 105 Cal. 467.) There is thus sufficient evidence to sustain the finding of the court.
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