Terry v. Sickles, 13 Cal. 427

Terry v. Sickles

13 Cal. 427 | Cal. | 1859

There were two opinions rendered in this case. The judgment is the same, but the opinions being different in some particulars, and both covering all the points in the case, the last only, delivered at the July Term, 1860, is inserted here. It was delivered by Cope, J.

Field, C. J. concurring.

We have examined the questions in this case, and are satisfied of the correctness of the former decision of this Court. The objection to the instruction given by the Court below is purely technical. The instruction could not have prejudiced the defendant. There was but one witness examined, and his testimony established every fact necessary to entitle the plaintiff to recover. Upon the evidence before them but one verdict could have been rendered by the jury, and we do not see how the instruction can be regarded as such an error as. would justify a reversal.

In support of an action upon an account stated, it is necessary to show that there was a demand in favor of the plaintiff, which was acceded to by the defendant. But the admission of the correctness of the demand need not be express and in terms. If the account be sent to the debtor, and he do not object to it within a reasonable time, his acquiescence ivill be taken as an admission that the account is truly stated. “ So,” says Green-leaf, “if one item only is objected to, it is an admission of the rest. So, if a person is employed by both parties to examine the accounts in their presence, and he strikes a balance against one, which, though done without authority is not objected to, it is *430sufficient proof of an account stated.” (2 Green. Ev. Sec. 126.) In this ease the account was presented to defendant, and he not only admitted its correctness, but promised to pay it.

The evidence in relation to the amount of the account was properly excluded. It is not alleged in the answer that there was any fraud or mistake in the original accounting. If the pleadings were not verified, the introduction of this evidence might have been proper under a general denial; but this point does not arise in the case, and we express no opinion in regard to it. In all cases where the pleadings are verified, every matter of defense not directly responsive to the allegations of the complaint must be set up in the answer.

Judgment affirmed.