a matter wherein said H. G. Brainard, a physician, appeared as a witness before James H. Blanchard, commissioner, in the city and county of Los Angeles, state of California, on or about the 25th, 26th, and 27th days of June, 1901, wherein, by reason of gross negligence, ignorance, and carelessness in diagnosing the case, said Brainard testified that defendant was insane, or words to that effect, all of which was untrue, and thereby greatly injured and damaged defendant, in an amount greatly in excess of any amount that might otherwise have been due to said Brainard from this defendant, and that, by reason of such gross negligence, ignorance, and carelessness, the testimony of said H. G. Brainard was of no value, but, on the contrary, was of great damage, to this defendant, to wit, more than the sum of $400; that at the time said purported assignment is alleged to have been made, and by reason of such gross negligence, ignorance, and carelessness, and the damages resulting to defendant as aforesaid, the defendant was not then, or at any time, or at all, indebted to said Brainard or to the plaintiff in said sum, or in any sum whatever. 5. Denies that the sum claimed by plaintiff in his complaint herein, or any portion thereof, is now wholly or at all due or payable from defendant to plaintiff, or to any person, or at all. Answering the second and further cause of action set forth in plaintiff's complaint, defendant denies as follows, to wit: [Here follow substantially the same allegations as in paragraph 1, to the effect that the said H. G. Brainard is a party in interest in the demand of the plaintiff, and the defendant therefore asks that the said H. G. Brainard be made a party to the suit.] Wherefore, defendant prays: That said H. G. Brainard be made a party to this suit; that the plaintiff take nothing by this action; that defendant have judgment against plaintiff for his costs of suit; and for such further relief as may be proper. Will D. Gould, Attorney for defendant. [Verification.] FORM o. 646—Defense of performance. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition]: Alleges that he performed all the work and labor he was to perform in and by virtue of the said contract, and denies that he left unperformed the work, as in the complaint [or petition] alleged, or otherwise, or at all. [Etc.] FORM No. 647-Denial of offer to serve. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition]: Denies that he ever at any time offered himself to the defendant to enter into his employment or service. [Etc.] FORM No. 648-Defense of special denial, and accounting and payment. [Title of court and cause.] The defendant answers the plaintiff's complaint [or petition]: 1. The defendant admits that the plaintiff did, at the request of the defendant, enter into the service of the defendant as stated in the complaint [or petition], but alleges that he did account with said plaintiff on the and that on the said accounting there was found due the plaintiff only the sum of $ $ day of 19 at 2. Defendant alleges that after said accounting, to wit, on the day of 19, he paid to the plaintiff the said sum of , so found due upon said accounting, and the plaintiff received and accepted the same in full satisfaction of said claim. [Concluding part.] Form of petition and reply, in an action for salary as president and general manager of a railroad company: St. Louis etc. R. Co. v. Tiernan, 37 Kan. 606, 608, 15 Pac. 544, 545. For a complaint, in an action to recover for injuries received while in the employ of a lumber and logging company, deemed sufficient in charging negligence governing the conduct of the work, see Lindsay v. Grande Ronde Lumber Co., 48 Ore. 430, 87 Pac. 145, 146. A petition alleging that work is done under a contract made with the duly authorized agent of the defendant, and, further, in the alternative, that the work was done at the solicitation of the said agent and with his knowledge and consent, although obscure, is sufficient to sustain a recovery on a quantum meruit: Sunderman-Dolson Co. v. Hope (Tex. Civ. App), 118 S. W. 216, 217. CHAPTER LXXXVII. Actions for Debt.-Goods Sold and Delivered. § 320. Complaints [or petitions] Form No. 649. Action for debt. (Common form.). Form No. 650. By partnership, for goods sold and delivered.. Page 1277 1277 1278 1279 1279 Form No. 655. To recover interest on a balance due on an ac count stated 1280 ........ Form No. 656. Against foreign corporation, on an account stated for debt 1281 Form No. 657. Against husband and wife, for goods sold to 1281 Form No. 658. By an assignee, for the price of stock and fix Form No. 661. Denial of plaintiff's title Form No. 665. Defenses-(1) general denial, (2) former judg Form No. 666. Defenses-(1) denial of account stated, (2) de- §322. Annotations ... 1285 1285 1286 1286 § 320. COMPLAINTS [OR PETITIONS]. FORM No. 649-Action for debt. (Common count.) (In Abadie v. Carrillo, 32 Cal. 172.) [Title of court and cause.] The plaintiffs complain of the defendant, and for cause of action aver: That on the 11th day of August, 1863, the defendant was indebted to the plaintiffs in the sum of $1,004.20 on an account for goods sold and delivered by the plaintiffs to the defendant, at his request, in the city of Santa Barbara; that no part thereof has been paid; and that there is now due them thereon, from the defendant, the sum of $1,004.20, with interest thereon from the 11th day of August, 1863. Wherefore, the plaintiffs pray judgment against the defendant in the sum of $1,004.20, with interest from the 11th day of August, 1863, and costs. A. B., Attorney for plaintiff. [Verification.] The court in sustaining the pleading in form No. 649, which follows the form of the complaint in Allen v. Patterson, 3 Seld. (N. Y.) 476, holds, that inasmuch as this would be a good count in debt at common law, upon authority of cases holding that the ordinary forms of counts in indebitatus assumpsit, for goods sold and delivered, etc., are sufficient, the same is good under the code: Abadie v. Carrillo, 32 Cal. 172, 175, citing Freeborn v. Glazier, 10 Cal. 337, 338; De Witt v. Porter, 13 Cal. 171; Higgins v. Wortell, 18 Cal. 330, 333; Wilkins v. Stidger, 22 Cal. 231, 235, 83 Am. Dec. 64. FORM No. 650-By partnership, for goods sold and delivered. (Magee v. Kast, 49 Cal. 141.), [Title of court and cause.] The plaintiffs, complaining of the defendant, allege: That plaintiffs are partners in business, under the firm name and style of Magee, Moore & Co.; that on the 17th day of November, 1871, the defendant was, and still is, indebted to the plaintiffs in the sum of $1,247.50, gold coin, on an account for goods, wares, and merchandise, consisting of leather and shoe manufacturers' goods, sold and delivered by the plaintiffs to the defendant, at his special instance and request, at the city and county of San Francisco; that no part of said sum has been paid; that there is now due to the plaintiffs thereon from the defendant the sum of $1,247.50, gold coin, with interest thereon from the 17th day of November, 1871, at the rate of per cent per annum. Wherefore, the plaintiffs pray judgment against the defendant for the sum of $1,247.50, gold coin, together with interest thereon from the date last aforesaid, and costs of suit. Holladay & Weeks, [Verification.] Attorneys for plaintiff. FORM No. 651-For reasonable value of goods sold. [Title of court and cause.] 1. That on the The plaintiff complains of the defendant, and alleges: day of 19 at the plaintiff sold and delivered to the defendant, at his request, certain goods. and merchandise, to wit: [Briefly describe the same.] 2. That said goods and merchandise were reasonably worth the sum of $ 3. That the said sum has not been paid, nor any part thereof [except, etc., stating payments, if any]. [Concluding part.] FORM No. 652-To recover for goods delivered to third person at defendant's request. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: and sold to the defendant [describe the goods], and at the defendant's request delivered the same to one L. M. 2. That the defendant promised to pay to the plaintiff therefor the sum of $ 3. [As in paragraph 3, form No. 651.] [Concluding part.] FORM No. 653-To recover where credit was given. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: sold and delivered to the defendant [describe the property], for the sum of $ 2. That the defendant promised to pay therefor to the plaintiff the said sum of $ on or before the 3. [As in paragraph 3, form No. 651.] da of 19 [Concluding part.] |