Rounthwaite v. Rounthwaite

CHIPMAN, C. Plaintiff sues on three counts to recover for money alleged to have been loaned by plaintiff to defendant: (1) For money loaned by plaintiff to defendant more than four years before the commencement of the action, to wit, $1,000, at five per cent interest, which defendant has acknowledged in writing within four years, and alleging a payment of $300 in the year 1898, leaving due $850; (2) for the same amount, and that defendant promised in writing to pay plaintiff’s claim within four years last past; (3) on an account stated June 15, 1899, showing a balance due plaintiff [880]of $871.14, and that defendant agreed to pay the same. Judgment is asked for $939.90, and interest at seven per cent from June 15, 1899. Defendant denies the indebtedness to plaintiff; denies ever acknowledging any indebtedness to plaintiff; denies that plaintiff ever loaned defendant any sum of money; pleads sections 337, 339 of the Code of Civil Procedure in bar; and alleges that any acknowledgment in writing given or signed by him to plaintiff, in relation 'to said indebtedness, was without consideration and void. The original complaint was filed September 15, 1900. The cause was tried by the court without a jury, and judgment passed for defendant. The appeal is from the judgment and from the order denying motion for new trial.

The court made the following findings: (1) That plaintiff did not loan to defendant, as alleged, or at any time, the sum named, or any other sum. (2) That plaintiff received from defendant $300 in 1898, but the same was not paid on any indebtedness owing by defendant to plaintiff, and it is not true that there was left a balance of $850, or any other sum due plaintiff. (3 and 4) That it is not true that defendant acknowledged said or any indebtedness to plaintiff, or promised plaintiff, in writing or otherwise, to pay the same. (5) It is not true that an account was stated between plaintiff and defendant June 15, 1899, or at any time; nor that a balance was found' due plaintiff from defendant at that or any time of $817.14, or any other sum. It is true defendant has not paid said sum. (6) That plaintiff never at any time loaned defendant any money, at his request or otherwise, and, if plaintiff had loaned the sum of money claimed in the amended complaint, the cause of action is barred by section 387 of the Code of Civil Procedure. As conclusion of law, the court found that defendant is entitled to judgment for costs.

Defendant does not deny that a loan of £200 was made to him, but he claims that it was made by his brother, plaintiff’s husband. Plaintiff claims that the evidence shows the loan to have been made by her, and therefore the first finding is not supported by the evidence. Upon this issue plaintiff claims that, although there may be a conflict in the evidence, yet, as most of the evidence submitted by her was in the form of depositions, this court is not bound by the usual rule; citing Wilson v. Cross, 33 Cal. 60. In the present ease some