Allen v. Citizens' Steam Navigation Co. , 6 Cal. 400 ( 1856 )

Mr. Justice Heydeneflt delivered the opinion of the Court.

Mr. Chief Justice Murray and Mr. Justice Terry concurred.

The claim sued upon was not a liquidated demand, within the meaning of the statute. Liquidation results from either an express promise to pay a sum certain, or from settlement or agreement between parties, after reviewing their mutual transactions, and in which a sum certain is specifically acknowledged to be due by one to the other. Without such accounting and acknowledgment, a sum of money merely loaned on open account, the return of which depends on future conditions, cannot be called a liquidated demand. It lacks the necessary quality of specific recognition, or express promise to pay.

The receipt of Chapman, acknowledging the amount received from plaintiff's assignor, cannot, in any sense, bring the claim within the rule laid down, because this receipt was given after the agency of Chapman had ceased, and it was not, therefore, the acknowledgment of the defendant.

Under our statute, the assignor of such a claim is not a competent witness, and the Court below erred in admitting him to give evidence.

The judgment is reversed, and the cause remanded.