Lew Choy v. Jim Sing, No. 17842

No. 17842 | Wash. | Jul 20, 1923

Bridges, J.

The plaintiff sued upon an instrument written in the Chinese language, a literal translation of which is as follows: “1918 Naknek Cannery — I owe Charlie Sam $823.35; 1920 Newskate Cannery — I owe Charlie Sam $1,810.90, total amount $2,634.25. Signed May 10,1921, by Jim Sing, 200-3d Ave. South, Seattle, Wash.” The complaint alleged that the instrument had been duly assigned to her and that she was the owner thereof, and no part of the amount called for had been paid and all was past due. The answer admitted the correctness of the translation, but denied that the defendant had signed the instrument or owed any money to the plaintiff. It further alleged that plaintiff’s assignor and the defendant had been in partnership in a certain business, and that on account thereof the plaintiff’s assignor was indebted to the defendant in a considerable sum.

The testimony showed that Charlie Sam, so-called, was the husband of the plaintiff, and that he had, in writing, duly assigned to.her the instrument which we have quoted. From a judgment in favor of the plaintiff, the defendant has appealed.

Appellant objected to the introduction of any testimony because the plaintiff’s husband, Charlie Sam, was a necessary party to the action. This objection being overruled, the appellant moved that the trial be continued and that the respondent be required to bring her husband into the action. This motion was also denied. It being proved that the respondent was the holder by due assignment of the instrument sued upon, her husband was not a necessary party to the action, because it became her separate property, or, at least, vested in her power of collection. There is nothing in our community property statutes which would require us to hold otherwise.

It appears that, at the time of one of the adjournments during the trial, one of the respondent’s witnesses was under an incompleted cross-examination by the attorney for the appellant. This witness had, among other things, given a translation into- English of the instrument sued upon. He failed to appear for further cross-examination and the appellant moved to strike all of his testimony. The court struck all except that with reference to the translation of the instrument. The court might have justly concluded that there had been sufficient cross-examination concerning the translation, and, if so, he would have been justified in refusing to strike that much of the testimony. In any event, there was no error because the appellant, in his answer and elsewhere, admitted that the translation was substantially correct and there was no controversy on that subject.

Appellant objected in the lower court to the introduction “of any testimony on a cause of action for account stated,” because the complaint was entirely silent upon that question, and here extensively argues his objection. Ordinarily where a suit is brought on an account stated the complaint must show such fact, but where, upon an account stated, one party acknowledges in writing, as here, an indebtedness to the other party, such writing being duly signed, the holder of the instrument may maintain a suit upon it, and it is for the defendant to plead the accounting as a defense, and that the instrument was the result of such accounting, and that the account stated was obtained by fraud or mistake, and the burden is upon him to show such condition.

While the instrument here sued on may not be a promissory note because it lacks some of the necessary elements to make it negotiable, yet it does indicate that the appellant is indebted to respondent’s assignor in a designated sum, and she was justified in maintaining her action on it.' Such being the situation, she made a prima facie case by introducing in evidence the written instrument, proving its execution and delivery, and that the amount was unpaid. It is true that the respondent was required to introduce some testimony touching an accounting between the partners, but she was required so to do only because of the denial by the appellant that he had executed the instrument, and in an effort to prove the execution and delivery, the respondent produced testimony showing that her husband and the appellant at one time had been partners, and that she and her husband visited the appellant’s store, where an accounting was had, and, based on that accounting, the written instrument in suit was executed and delivered. In other words, proof of an accounting was not material to the respondent’s action. We therefore hold that the complaint was not defective, and that the court was not in error in receiving such testimony as the respondent presented concerning an account stated.

Appellant further contends that the testimony was overwhelmingly in his favor to the effect that he had not signed the instrument, and that, in any event, there was an error in the accounting. A reading of the testimony convinces us, as it did the trial court, not only that the appellant signed it, but that there was neither fraud nor mistake in the accounting. Judgment affirmed.

Main, C. J., Mackintosh, Holcomb, and Mitchell, JJ., concur.