150 P. 994 | Cal. | 1915
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *572 Plaintiff sued upon the following instrument, as an account stated, averring a demand upon defendant and his refusal to pay, averring also defendant's financial ability to pay:
"THIS AGREEMENT, made between Robert J. Gardner, of Los Angeles, California, and Dr. C.P.V. Watson, of the same place.
"WITNESSETH: That, whereas, the said Gardner in the year 1906 invested in the California Fruit Growers' Association, the sum of three thousand dollars, and at the time of such investment the said Watson, together with one Bartlett entered into a contract with the said Gardner by the terms of which contract, among other things, they agreed to repurchase the said stock of the said Gardner at the sum or price of three thousand dollars, and whereas, the said Watson thereafter took over the said interest of the said Gardner in the said California Fruit Growers' Association, and the said Gardner surrendered up the said contract above referred to and received, and took in exchange therefor certain stock in the Queen Mining and Development Company, and whereas, the said stock of the said Queen Mining and Development Company has become valueless, and whereas, the said Watson has promised and agreed with the said Gardner, in consideration of the facts above mentioned to repay to him the said sum of $3000 so originally invested in the said California Fruit Growers' Association aforesaid when he, the said Watson, was financially able to do so, and whereas, he is still willing and anxious to protect the said Gardner against loss on account *573 of the said investment and to carry out his said agreement to reimburse him whenever financially able to do so,
"NOW THEREFORE, THIS AGREEMENT WITNESSETH: That the said Watson hereby acknowledges himself indebted to the said Gardner in the sum of three thousand dollars in the manner above mentioned, and reduced the said agreement to writing for the purpose and to the end that in the event that he has not been able to meet the said obligation prior to the time of his death, that the said Gardner shall then and at that time have a valid and subsisting claim against his estate for the payment of the said obligation.
Witness, the hands and seals of the parties, this day of March, 1911.
(Signed) C.P.V. WATSON (Seal)."
Defendant answering, made denial of the allegations of the complaint, and specifically pleaded lack of consideration for the execution of the instrument and misrepresentation upon the part of the plaintiff in procuring defendant's execution of it, this misrepresentation, however, being one of law, the allegation amounting to a charge that plaintiff was an attorney at law, "had influence with the said defendant" and "assured defendant that it created no legal liability upon him."
When this cause came on for trial plaintiff's attorney declared his conviction that the instrument in suit was an account stated and that as its execution had been admitted, the burden was upon the defendant to overcome its legal efficacy as establishing an unpaid debt in the amount sued for. The court ruled that the instrument was not an account stated. Thereupon the plaintiff's attorney, following the only course left open to him, produced and offered evidence to show (quoting his statement) that at the time the instrument was executed by the defendant "plaintiff was making certain claims against Dr. Watson for fraud in connection with the transfer to him of this mining stock, and that for the purpose of preventing the plaintiff here from commencing an action for fraud in that connection, this agreement was agreed upon and reduced to writing." The court sustained an objection to the introduction of any of this evidence, the court stating that it did not see "under this contract and with this complaint" in what way plaintiff could prevail. Judgment then followed for the defendant and plaintiff appeals. *574
Over what in law constitutes an account stated there was never any question in this state, and very little uncertainty exists in other states. "It must appear" (says this court in Baird v.Crank,
Two other matters presented upon the appeal merit brief consideration. As has been said, under the ruling of the court that the instrument in question did not constitute an account stated, plaintiff sought to show (the genuineness and due execution of the instrument being admitted) the true consideration. Respondent's counsel state that the court sustained the objection to this offer upon the ground that it was an attempt to vary by parol the language of a written instrument. It was not incumbent upon the plaintiff to undertake to do this, since a written instrument is itself presumptive evidence of the consideration (Civ. Code, sec.
The judgment and order appealed from is therefore reversed.
Lorigan, J., and Melvin, J., concurred. *578