amount than the sum sued for; the plea was insufficient for not stating when the agreement was made.1

§ 3387. Adjustment and settlement. Adjustment and settlement of an account must be specially averred. It is not proper to frame an answer, as responsive to a bill of particulars.3

§ 3388. Denial of mistakes or errors. That there are no such mistakes or errors in the stating of the said account, in manner and form as the said plaintiff hath in his said petition alleged, is sufficient. On surcharging and falsifying an account stated, the mistake or error should be distinctly charged.* The items of an account stated which are overcharged must be specially pleaded." The proper mode of raising an objection to the amount of the plaintiff's claim is by answer.

§ 3389. Denial of mutual dealings.

Form No. 768.

That there are no such mutual dealings and account between the said plaintiff and defendant, in manner and form as the said plaintiff hath in his said petition alleged."

§ 3390. On information and belief. When the action is upon an account, and defendant in his answer avers, in the form of reasons for refusing payment when the account was presented to him before suit, that the principal portion was composed of items for printing done for clients, for which he never became personally bound, and that the portion for which he was personally liable "has, to the best of his knowledge and belief," been paid and satisfied, and, therefore, he pleads payment of the same, it was held that this is in substance a denial of indebtedness for a portion of the account, and a plea of payment for the balance; and that it is in effect an admission

1 Grimes v. Reese, 30 Ga. 330.

2 Parker v. Lowell, 11 Gray, 353.

3 Scovell v. Howell, 2 Code R. 33; Kreiss v. Seligman, 8 Barb. 439. 4 Stoughton v. Lynch, 2 Johns. Ch. 209; Leaycraft v. Dempsey, 15 Wend. 83; see, also, Warner v. Myrick, 16 Minn. 91; Costin v. Baxter, 6 Ired. 192.

5 Terry v. Sickles, 13 Cal. 427.

6 Moran v. Anderson, 1 Abb. Pr. 288.

7 By mutual account is meant the mutual receipt, one from the other, of something of value other than money. The payment of money does not, in general, make an account mutual. See § 609, ante.

as to that balance of an original liability, and throws the burden. of establishing payment upon the defendant.8

§ 3391. Partnership account. A denial by one of the defendants in suit on a partnership account, stating that "he never was a copartner," is sufficient to form an issue.9

§ 3392. Several defenses. In an action to recover many items of demand, defendant may plead one defense to some of the items, and another defense to others.10

§ 3393. Statute of Limitations. To suit on an account, defendant averred that each and every item of said account prior to the 10th day of March, 1859, is barred by time; and he pleads and relies upon the statute of the state of California, entitled "An act defining the time of commencing civil actions," approved April 22, 1850, in bar of any recovery in said action: it was held that this plea is fatally defective, because an averment of a conclusion of law; that a plea of the Statute of Limitations must aver the facts which bring the demand within the operation of the statute, as that the alleged cause of action has not accrued within certain designated years previous to filing the complaint.11 When the account is not a mutual one, the Statute of Limitations bars each item of the same, two years after its delivery.12 To suit on an account, the plea must aver the facts which bring the demand within the operation of the statute.13 A defendant who claims the benefit of an act for the limitations of actions, which applies only to a particular class of cases, must plead it specially.14 This defense should point to the time of filing the original complaint, and not an amended complaint.15 The words "preceding the commencement of this action" are equivalent to the words preceding the filing of the complaint."16

8 Caulfield v. Sanders, 17 Cal. 569.

• Corning v. Haight, 1 Code R. 72.

10 Longworthy v. Knapp, 4 Abb. Pr. 115. 11 Caulfield v. Sanders, 17 Cal. 569.

tions. See § 3320, ante.

12 Adams v. Patterson, 35 Cal. 122.

Plea of the Statute of Limita

13 Caulfield v. Sanders, 17 Cal. 569; Lick v. Diaz, 30 id. 65; and not state matters of law. Boyd v. Blankman, 29 id. 20; 87 Am. Dec. 146.

14 Howell v. Rogers, 47 Cal. 293.

15 Lorenzana v. Camarillo, 45 Cal. 128.

16 Adams v. Patterson, 35 Cal. 122. For statutory form of pleading the Statute of Limitations, see Cal. Code Civ. Pro., § 458.

The defendant answers to the complaint:

That by the terms of the agreement referred to in the complaint, the arbitrators were to hear the evidence and arguments of both parties at meetings called upon notice to both, but that they refused to hear the evidence offered by defendant, and failed and refused to give defendant notice of the said meetings, or any of them.

Wherefore, etc. [judgment may be demanded, setting aside the award, if desired].1

§ 3395. Denial of award.

Form No. 770.

That the said arbitrators [or umpire] did not make and publish any award [or the award alleged in the complaint]. [If the defendant relies upon an irregularity in the award, of an excess of power on the part of the arbitrators, it is better to allege the act expressly.]

§ 3396. Denial of parol submission.

Form No. 771.

That he did not agree or promise as alleged.2

1 For various points and authorities upon the subject of awards, see ante, vol. 1, p. 308 et seq. The defense of an award can not be shown under a general denial. It is new matter which must be specially pleaded. Brazill v. Isham, 12 N. Y. 9; Brown v. Perry, 14 Ind. 32; Gihou v. Levy, 2 Duer, 176; and see § 647, ante. Where a plea to an action at law sets up an arbitration and award in bar of the action, it is improper to attach thereto, as exhibits, copies, respectively, of the submission and the award. Jones v. Harris, 58 Miss. 293.

2 It was held at common law that where a party desires to question the legal effect of a submission or award, he must set it out and demur. Fidler v. Cooper, 19 Wend. 285.

§ 3397. Denial of performance by plaintiff.

Form No. 772.

That the defendant did not perform the award upon his part, but on the contrary omitted to [set forth his omission].

§ 3398. Denial of revocation by defendant.

Form No. 773.

That he did not revoke the powers of the arbitrators, as alleged in the said complaint.

§ 3399. Performance by defendant.

Form No. 774.

That the defendant duly performed the award on his part, and upon the the ...

was done].

.. day of

18.., [state what

CHAPTER III.

ANSWER ON EXPRESS PROMISES.

8400. Denial of promise.

[TITLE.]

Form No. 775.

The defendant answers to the complaint, and denies:

That he promised or agreed as alleged in the said complaint, or that he made any agreement in respect to the matters stated in the complaint.

CHAPTER IV.

ANSWER FOR GOODS SOLD AND DELIVERED.

§ 3401. Controverting plaintiff's title.

[TITLE.]

Form No. 776.

The defendant answers to the complaint:

That no part of the goods, wares, and merchandise in the complaint mentioned was the property of plaintiff when sold to defendant; but the same then was the property of one A. B., and who alone, and not the plaintiff, sold the same to this defendant.

Vol. II-87

i 3402. The same — reducing value, and pleading payment.

[TITLE.]

Form No. 777.

The defendant answers to the complaint: I. That he promised to pay the plaintiff lars only and no other or greater sum.

II. That he has paid the said sum to the plaintiff.

dol

§ 3403. Conclusion of Law. If the complaint avers the sale and delivery to defendant of goods, and the value of the same, an answer which denies the indebtedness, but does not deny the facts, the sale and delivery, and amount of goods, does not raise an issue, as it only denies the legal conclusion resulting from the facts.1

§ 3404. Conjunctive denials. Where the complaint verified avers that defendant is indebted to plaintiff for goods, wares, and merchandise sold and delivered, in the sum of eight hundred and twenty-eight dollars and sixteen cents, and the answer denies that the defendant is indebted in the sum of eight hundred and twenty-eight dollars and sixteen cents, the denial is insufficient.2

83405. Statute of Limitation.

When the complaint states a cause of action for goods sold and delivered, and a bill of items is annexed to the same as an exhibit, with the date of each item, an answer which refers to the exhibit and avers that the last item only is within two years previous to the commencement of the action, and that, except as to the last item,

66

no action has accrued to said plaintiff by reason of the matter mentioned and set forth in said complaint at any time within two years next preceding the commencement of this action," is a good answer of the Statute of Limitations to all the items except the last one.3

1 Lightner v. Menzell, 35 Cal. 452; Curtis v. Richards, 9 id. 33; Wells v. McPike, 21 id. 215; Edson v. Dillaye, 8 How. Pr. 273; Flammer v. Kline, 9 id. 216; Drake v. Cockroft, 10 id. 377; S. C., 1 Abb. Pr. 203; Cal. St. Tel. Co. v. Patterson, 1 Nev. 151.

2 Higgins v. Wortell, 18 Cal. 330; Woodworth v. Knowlton, 22 id. 164; Doll v. Good, 38 id. 287; see § 3187, ante.

Adams v. Patterson, 35 Cal. 122.