13 Cal. 640 | Cal. | 1859
Terry, C. J. concurring.
This suit was brought as on a quantum valebant, for professional services as Attorneys. The complaint claimed, among other charges, a sum of money due for the conduct of a suit of Paige v. O’Neill. The answer denied the value of the services as charged.
One of the reasons given for this ruling is, that this matter is not set up in the answer. It seems to be supposed that this was new matter, which should have been affirmatively pleaded. The rule invoked, however, does not apply to this case. Anything which shows that the plaintiff has not the right of recovery at all, or to the extent he claims, on the case as he makes it, may be given in evidence upon an issue joined by an allegation in the complaint, and its denial in the answer. Where, however, something is relied on by the defendant which is not put in issue by the plaintiff, then the defendant must set it up. That is new matter—that is, the defendant seeks to introduce into the case, a defense which is not disclosed by the pleadings. This case is a good illustration: the plaintiffs aver that the defendant is indebted to them in the sum of, say fifteen hundred dollars, for services rendered; that he is indebted to this amount because this was the value of these services. The defendant denies that he is indebted at all, and denies, further, that the services were of the value charged. He proposes to show that they were not of this value. He can do this by any legal proof, and he is not
It may be that the record of Paige v. O’Neill showed no negligence; and the rulings of the learned Judge below, on the motion for a new trial, would seem at the first blush to establish this fact; but we cannot know, in the face of the offer to prove the contrary, that the defendant would necessarily have been unsuccessful; nor do we understand from the broad proffer of proof, that the negligence imputed was confined to errors as shown by the record.
Judgment reversed, and cause remanded.
See Terry v. Sickles, ante; Angulo v. Sunol, 14 Cal.