Gould v. Barrow

Lamar, J.

At the date of the credit sale to Fripp for $5,200, the principal and interest of petitioner’s debt amounted to $4,959.05, to which were to be added attorney’s fees and costs of foreclosure •and sale, which it might be fair to say would have approximated the difference between $4,959.05 and $5,200. According to petitioner’s own showing, it was doubtful if anything would -be due to him on an accounting. But even if there would be a balance, the petitioner, notwithstanding a demurrer, failed to amend or to allege that Fripp’s notes were due, or that Fripp had paid his purchase-money notes, or that the defendant’s testator or his executor had received more than petitioner owed, or that they had in hand money due to him, or that something would be found due on the accounting. He was not obliged to allege how much was due, but was bound to aver facts to show that he had a cause of action, and ■that something would be found due him. Civil Code, § 49 60. The law will not do a vain thing and order an accounting when a petitioner does not show that he will gain thereby.

It is unnecessary to consider whether the suit was premature, or whether prima facie this appears to be such an intricate and complicated account as would justify a resort to equity (Civil Code, § 3989), or whether the demand was stale.

Judgment affirmed.

By four Justices. Colb, J., disqualified.