Jenne v. Burger

THE COURT. The plaintiff, as assignee of J. W. Schouten & Co., brought this action to foreclose a lien for lumber, of the alleged value of three hundred and fifty dollars, furnished by said Schouten & Co., and used by defendants in the construction, alteration, and repair of a dwelling-house upon a certain lot of land owned by defendants in the city of San Francisco. The complaint stated all the facts necessary to constitute a cause of action and, among other things, that the said indebtedness had not been paid.

The answer admitted all the allegations of the complaint except the one as to nonpayment. This is denied, and alleged that plaintiff and hi^assignors, long prior to the commencement of the action, accepted and received defendant Burger’s promissory note in' full payment and satisfaction of the indebtedness sued up oh.

Upon the issue thus presented, the court below found in favor of the defendants and gave judgment accordingly, from which apd an order denying a new trial the plaintiff appeals.

/ The appellant contends that the findings were not justified by the evidence, and that the court erred in some of its rulings upon the admission of evidence.

The evidence given at the trial was in substance as follows: J. W. Schouten was called and testified for the plaintiff that he was a member of the firm of J. W. Schouten & Co., the assignors . of the plaintiff, and that the three hundred and fifty dollars, for which they filed a claim of lien, had not been paid. Counsel for defendants then produced a statement of the account for lumber furnished by Schouten & Co. to Burger during the month of April, 1896, and amounting to four hundred and eighty-nine dollars and sixty-six cents, on which was indorsed: “Rec’d payment by note due June 17th. J. W. Schouten & Co.” The witness then testified that “the items of lumber mentioned in the statement contain the lumber that went into the house, and also the lumber that went into the factory to be manufactured [446]into furniture,” and that the lumber that went into the factory had not been paid for.

Counsel for defendant n'ext produced and offered in evidence five receipts, each reciting that Schouten & Co. had received a certain small sum of money from Burger, and two promissory notes madé by Burger to the Usal Redwood Company and indorsed in blank by the payee, one dated June 1, 1896, and marked “Paid August 5, 1896,” and the other dated May 25, 1896, and marked “Paid August 3, 1896.” As to the money evidenced by the receipts and the first-named note, the witness testified that it was all for cash sales or applied on an open account existing before March 1, 1896, and that both of said notes were paid by Schouten & Co. and not by Burger.