Coalter v. Hurst

97 Cal. 290 | Cal. | 1893

Harrison, J.

The statement of the account between the parties upon all of their transactions with each other which the court made in its findings was not a finding upon issues not presented by the pleadings, but was a direct finding upon the issue of payment presented by the defendant’s answer. The defendant had alleged in his answer that he had fully paid for the services for which the plaintiff brought the action. Under this averment he showed that he had paid to the plaintiff various sums of money, amounting, in the aggregate, to more than the court found to be the value of the services; but as the plaintiff had alleged in his complaint that he had not been paid for his services, there was an issue upon this averment, and the plaintiff was at liberty to show that the moneys had in fact been paid upon other transactions. The court in its findings stated the account between the parties, and, in effect, found that $1,090 of the amounts paid by the defendant was upon other transactions, $800 of which was for moneys that had been received by the defendant from the plaintiff before any services were rendered. As the defendant did not make application of any of the moneys paid by him to a discharge of his obligation for the services rendered by the plaintiff, or to any specific demand of the plaintiff, the court was at liberty to apply them to the extinction of the obligations earliest in date of maturity, (Civ. Code, sec. 1479, subd. 3 (3), and as the récord does not disclose the dates at which the respective payments were' made, we may assume that it appeared from the evidence that all of the obligations matured prior to those dates, and that the court applied the payments thereon.

The judgment is affirmed.

Garoutte J., and Paterson, J., concurred.