McCarthy v. Mt. Tecarte Land & Water Co.

Henshaw, J.

Appeals from the judgment and from the order denying a new trial.

Plaintiff averred that between the twenty-first day of August and the twenty-fourth day of November, 1891, the firm of J. Harvey McCarthy & Co. had at the request of defendant sold and delivered to it goods, wares, merchandise, and moneys, of the value of two thousand five hundred dollars; that the interest of the .firm in and to said claim and account had been assigned to plaintiff upon November 24, 1891; that thereafter defendant paid to plaintiff on said account the sum of two hundred and fifty dollars, and no more. Judgment was asked for the unpaid amount, with interest. Defendant answered, denying that it ever ordered or received the merchandise or moneys, or any part thereof. It also denied that it had paid two hundred and fifty dollars, or any other sum.

The court found in accordance with the complaint that goods, etc., of the value of two thousand five hundred dollars had been delivered to defendant, and this finding is not attacked.

It found the payment by defendant to plaintiff of two hundred and fifty dollars, and no more. This finding is attacked. The basis of attack is evidence of a settlement had between defendant and J. Harvey McCarthy, a partner of the firm, which settlement it is claimed included all of the items, matters, and things here in controversy. It appears that J. Harvey McCarthy had an action pending against this defendant for goods and merchandise sold, in which he demanded judgment for twelve hundred dollars. A settlement was had between him and the company, and upon a bundle of accounts (some of which embrace the items here in. litigation) he signed this receipt: “ Payment and full satisfaction of balance due on within accounts, and also of all other demands included in the complaint in the action entitled J. Harvey McCarthy v. Mt. Tecarte Land and Water Company, No. 6811.”

But McCarthy testified that he did not examine the bills; that he thought the settlement embraced only the items in litigation in the action; and that he so expressed himself to the defendant’s attorney, saying at the same time that he had previously assigned to his father (this plaintiff) a claim for two thousand five hundred dollars. The language of the receipt is not at variance with this evidence. Moreover, this settlement was had in 1892. The assignment to plaintiff was executed in 1891, and the directors of the defendant corporation were informed of it at one of their regular meetings shortly after it was made. Under these circumstances a settlement with J. Harvey McCarthy would not relieve defendant from its liability for the debt previously transferred to plaintiff. (Gilman v. Curtis, 66 Cal. 116; Works v. Merritt, 105 Cal. 467.) There is thus sufficient evidence to sustain the finding of the court.

On the fifteenth day of December, 1894, defendant made demand on plaintiff for a bill of particulars. Six days thereafter, on December 21st, the bill was served. More than forty days thereafter trial was commenced-Upon the trial defendant, without objection then or previously made to the sufficiency of the account aa furnished, opposed the reception of any evidence upon the ground that it had not been delivered within five-days after demand. Section 454 of the Code of Civil Procedure provides that a party must deliver to his adversary, within five days after demand, a copy of an account sued upon, or be precluded from giving evidence thereof. It is for a rigid construction of this section that appellant contends, insisting that its provisions are mandatory, and leave the court no discretion in the matter. But this view finds no support in the reason which called the section into existence. In the simplification of pleadings it is designed to protect the adverse party from embarrassment upon the trial, by enabling him to demand and obtain in advance a detailed statement of the items charged against him. If the demand is not complied with, then, for the refusal or gross neglect, the prescribed penalty may be exacted. If the demand-ant receives the copy long enough before the trial to* enable him to examine it and prepare his defense, so-far as he is concerned the statute has fulfilled its usefulness. It would be to the last degree oppressive to hold that a plaintiff must lose his cause of action because, though he had furnished, the copy of his account more-than forty days before the trial, he had served it upon the sixth instead of the fifth day after demand.

The circumstances of this case will serve to illustrate-the injustice and oppression which would follow so drastic a rule.

The plaintiff delivered the copy of his account to-defendant more than forty days before the trial. No objection was made to its sufficiency. Defendant’s secretary. compared the account with plaintiff’s books. At the trial no item of the account was attacked, no word of evidence offered in dispute of its correctness. The-court found that two thousand two hundred and fifty «dollars was justly due to plaintiff, and yet defendant would seek to avoid payment because the copy was served, not so late as to embarrass its defense, but a day later than the statute contemplates.

A court would be reluctant to adopt a construction which would lead to such results, and we are not compelled to do so. We are referred to no authority construing the provisions of such a statute as mandatory; but, upon the other hand, it is uniformly held that the language serves but to name a penalty vesting the discretionary power of exacting it or not in the sound discretion of the trial judge. (Robbins v. Butler, 13 Col. 496.) In Graham, v. Harmon, 84 Cal. 181, 185, it is said that the penalty only applies where the party refuses to furnish the copy; and in Conner v. Hutchinson, 17 Cal. 279, it is held that if the bill of particulars is for any reason objectionable, and the adverse party proposes to object to the introduction of evidence, he may not wait until the trial, but previous to the trial must move for and obtain an order excluding the evidence. Such is also the rule laid down in Kellogg v. Paine, 8 How. Pr. 329, and in Isham v. Parker, 3 Wash. 774. This defendant failed to do, and for that additional reason his objection was properly overruled.

Objection was also made to the admission in evidence of certain original books of entry of the firm of J. Harvey McCarthy & Co. To set forth the evidence given as the foundation for their admission would be profitless. Suffice it to say that it was sufficient to warrant the court’s ruling.

The judgment and order appealed from are affirmed.

McFarland, J., and Temple, J., concurred.