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FORM No. 664-Averments in defense as to agreement to take note in part

payment.

[Title of court and cause.]

[Introductory part.]

$

day of

1. That the said goods were sold and delivered to the defendant by the plaintiff upon an agreement, by and between them, that the plaintiff should accept in part payment therefor, to the extent of , a promissory note for that sum drawn by this defendant, and dated on the , 19, and payable on the day of 19, [with an approved endorser,-if such be a part of the agreement,] and the residue, of $ to be in cash; that said cash residue was [here allege payment, and the time thereof, or allege offer to pay at a stated time and place, as the case may be]. 19 and before this action

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2. That on the day of was commenced, the defendant tendered to the plaintiff such a note as above described [endorsed by who was then, and still is, a person of good credit and ability, and a sufficient endorser]; that defendant is still ready and willing to deliver said note and to pay said residue in cash as agreed.

3. That the defendant refused to receive said note, and has refused, and still refuses, to abide by the agreement aforesaid.

[Etc.]

FORM No. 665-Defenses—(1) general denial, (2) former judgment. (In Reidy v. Scott, 53 Cal. 69.)

[Title of court and cause.]

Now comes the defendant, and answers the complaint of the plaintiffs herein, as follows:

1. Denies every allegation in said complaint as if said allegations were separately set forth herein and specifically and at length denied.

2. For a further and separate defense to this action, defendant alleges that on the 26th day of September, 1876, an action was commenced in the above-entitled court by the above-named plaintiffs against defendant, to recover the amount sued for in this action; that the cause of action set forth in the complaint in said suit is the same as that alleged in the complaint in this action; that thereafter, and before the commencement of this action, to wit, on the 30th day of December, 1876, judgment was duly rendered in said action.

Jury's Pl.-82.

against plaintiffs, and in favor of defendant, for the costs thereof; that said judgment has never been appealed from or set aside, or in any manner disturbed.

Wherefore, defendant asks judgment against plaintiffs for his costs. Bodley & Campbell, Attorneys for defendant.

FORM No. 666-Defenses-(1) denial of account stated, (2) denial of indebt. edness.

(In Stimson M. Co. v. Hughes M. Co., 8 Cal. App. 559; 97 Pac. 322.) [Title of court and cause.]

[After introductory part and denials conformably to this defense, the answer proceeds:]

Defendant denies that plaintiff at any time rendered to defendant an itemized or any bill of the material then delivered, or that on the first or any day of each or any month thereafter, or at all, plaintiff rendered to defendant a full or complete or any account, or referred to the itemized bills previously or at all rendered to defendant, or that said accounts or either of them, or any account alleged to have been rendered, ever became a stated account, or that defendant ever agreed or assented thereto; denies that there is, or ever has been, any stated account between plaintiff and defendant for said material, or that he is indebted to plaintiff in any amount whatsoever; [etc.].

[Concluding part.]

Form of complaint in an action to recover for material and machinery furnished in, about, and for rebuilding a certain flouring-mill: Gove v. Island City Merc. etc. Co., 19 Ore. 363, 24 Pac. 521.

Form of demurrer in an action to recover money alleged to be owing by defendants on an account for goods, wares, and merchandise, sold by plaintiff to defendants: Howes v. Lynde, 7 Mont. 545, 548, 19 Pac. 249.

§ 322. ANNOTATIONS.-Actions for debt.-Goods sold and delivered.

1. Action in assumpsit.-Pleading at common law.

2, 3. Sufficiency of pleading under the code.

4. Assumpsit lies after part performance.

5. Partner may maintain assumpsit against copartner.

6. Rescission for refusal or neglect to perform.

7. Purchase and sale.-Renunciation of contract.

8. Action by partners on quantum meruit.

9. Variance as to dates of sales, when immaterial.
10. Account stated.--Nature of.

11. Account not mutual.

12. Mistake in account stated, how put in issue.

18, 14. Action for balance of account.-Daily balances.

15. Defense of non-delivery.-Under general denial.
16. Reply to counterclaim.

1. ACTION IN ASSUMPSIT.-Pleading at common law.-Under the system of pleading at common law it was requisite that the declaration in action of assumpsit upon executed consideration should show that consideration for promise by defendant was sufficient to support his promise, and it was sufficient to aver that consideration was executed at his request, but this averment was unnecessary when consideration as well as promise was implied from the nature of transaction set forth in the declaration-as in an action for goods sold and delivered to defendant or for money loaned to him by plaintiff: McFarland v. Holcomb, 123 Cal. 84, 86, 55 Pac. 761. See Fisher v. Pyne, 1 Man. & G. 265, 39 Eng. C. L. 437.

2. Sufficiency of pleading under the code. It is sufficient under the code to state facts in an action in assumpsit from which a promise to pay will be implied: National Bank v. Landis, 34 Mo. App. 433, 440, cited in Bick v. Clark, 134 Mo. App. 544, 114 S. W. 1144.

3. Indebitatus assumpsit.-A count in indebitatus assumpsit, framed substantially as required at common law, is now held to be a sufficient compliance with the code mandate as to allegations of fact: Henry Inv. Co. v. Semonian, 40 Colo. 269, 90 Pac. 682, citing Campbell v. Shiland, 14 Colo. 491, 23 Pac. 324; Wilcox v. Jamieson, 20 Colo. 158, 36 Pac. 902.

4. Assumpsit lies after part performance where the entire performance of a special contract has been prevented by one of the parties, or where its terms have been afterwards varied by agreement of both parties: Reynolds v. Jourdan, 6 Cal. 108, 111; Cox v. Western Pac. R. Co., 47 Cal. 87, 90; Cox v. McLaughlin, 76 Cal. 60, 63, 64, 18 Pac. 100, 9 Am. St. Rep. 164; Joyce v. White, 95 Cal. 236, 238, 30 Pac. 524; Porter v. Arrowhead R. Co., 100 Cal. 500, 503, 35 Pac. 146.

as rescinded, and authorizes him to sue generally as in indebitatus assumpsit: Miller v. Thompson, 22 Ark. 258, cited in South Texas Tel. Co. v. Huntington (Tex. Civ. App.), 121 S. W. 242, 248.

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7. PURCHASE AND SALE.-Renunciation of contract.-Mere failure to pay, not evincing a purpose to renounce contract, is insufficient to justify the seller in treating the contract as abandoned; but if, from all the circumstances, it appears that the buyer intended to renounce and abandon the contract, the seller may then repudiate the same because of its breach by the buyer: Quarton v. American Law Book Co. (Iowa), 121 N. W. 1009, 1014; Monarch Co. v. Wheel Co., 105 Fed. 324, 44 C. C. A. 523; West v. Betchel, 125 Mich. 144, 84 N. W. 69, 51 L. R. A. 791. (For a review of the cases touching the question of contracts of sale, rights of the seller upon abandonment of the contract by the buyer or upon conditions, and limitation of right of specific performance in reference thereto, see Quarton v. American Law Book Co. (Iowa), 121 N. W. 1009, 1016.)

5. Partner may maintain assumpsit against copartner for contribution where he pays partnership debt existing after dissolution of partnership; and this is true although he gives his individual note for debt due from the firm: Sears v. Starbird, 78 Cal. 225, 231; 20 Pac. 547. 6. Rescission for refusal or neglect to perform.-A refusal or neglect by one party to perform his part of a contract justifies the other in treating the same

8. Action by partners on quantum meruit. In an action brought by partners, in their individual names, upon quantum meruit, it is not necessary to allege that the cause of action accrued to them as copartners: Wilson v. Yegean Bros., 38 Mont. 504, 100 Pac. 613, 615. See Clark v. Wick, 25 Ore. 446, 36 Pac. 165; Boosalis v. Stevenson, 62 Minn. 193, 64 N. W. 380.

9. Variance as to dates of sales, when Immaterial.-Where the gist of an action was the sale of material described in an exhibited account, variance as to the date of sales is not fatal where the defendants could not have been misled by the variance and did not claim to have been misled: C. H. Smith etc. Co. v. Weatherford (Ark.), 121 S. W. 943, 946.

10. ACCOUNT STATED.-Nature of. -An account stated alters the nature of the original indebtedness, and is in itself in the nature of a new promise or undertaking: Naylor & Norlin v. Lewiston etc. R. Co., 14 Idaho 789, 96 Pac. 573, 578, (to foreclose lien under an account stated); Hendy v. March, 75 Cal. 566, 17 Pac. 702; Carey v. Philadelphía etc. Petroleum Co., 33 Cal. 697; Holmes v. De Camp, 1 Johns (N. Y.) 36, 3 Am. Dec. 293.

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11. An account, not mutual, but onesided, has been likened to money had and received for one by another. In a sense, definite payments to one for another would constitute an account, each payment being an item; yet the action would essentially be for money had and received. If the payments be made on a transaction, and some of them are older then the period of limitations and others within the period, the aggregate constitutes a single demand. As each successive payment is made, the cause of action is merely enlarged, until the last one, within the period of limitation, would make the total of a single chain, the subject of a single action: Roberts v. Neale, 134 Mo. App. 612, 114 S. W. 1121, citing and approving these principles as stated in Kearns v. Heitman, 104 N. C. 332, 10 S. E. 467.

12. Mistake in account stated, how put In issue. An action upon an account stated is not founded upon the original items, but upon the balance ascertained by the mutual consent of the parties; so where such account stated is assailed upon the ground of mistake, the mistake must be put in issue by the pleadings: Naylor & Norlin v. Lewiston etc. R. Co., 14 Idaho 789, 96 Pac. 573, 578; Coffee v. Williams, 103 Cal. 550, 37 Pac. 504; Auzerais v. Naglee, 74 Cal. 60, 15 Pac. 371; Terry v. Sickles, 13 Cal. 427.

13. Action for balance of account.The account must be alleged in an action for balance of account, in like

§ 323. Complaints [or petitions]

§ 324 Answers

CHAPTER LXXXVIII.

Money Had and Received.-Involuntary Trusts.

§ 325. Annotations

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manner as in ordinary actions, and the complaint should specify the nature of the items composing it: Knowles v. Sandercock, 107 Cal. 629, 641, 40 Pac.

1047.

14. Daily balances.-An action may be brought for daily balances, as shown by an account: Santa Rosa Nat. Bank v. Barnett, 125 Cal. 407, 410, 58 Pac. 85.

15. DEFENSE OF NON-DELIVERY. -Under general denial.-In an action to recover for goods alleged to have been sold and delivered to the defendants, a general denial puts in issue the delivery, and it is not necessary to specifically allege the defense of non-delivery of the goods in order to admit evidence tending to show that the plaintiff had not performed the contract in this respect: Mette & K. D. Co. v. Lowrey, 39 Mont. 124, 101 Pac. 966, 969.

Form No. 667. For money had and received. (Common form.)
Form No. 668. On assigned claim for money had and received,
etc.-Statement of cause in separate counts 1289
Form No. 669. For recovery back of a wager....
Form No. 670. To recover specific moneys lost by a servant in
gambling

1290

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16. Reply to counterclaim.-Under a complaint for goods sold and delivered at an agreed price, and where the defendant, as a basis for its counterclaim, pleaded that said contract was such as to require further deliveries, which the plaintiff failed to make; held, that the reply of the plaintiff to this counterclaim should have pleaded a modification of this contract sufficient to excuse the plaintiff from further deliveries. The general denial of the plaintiff to the counterclaim puts in issue the existence of the contract as pleaded by the defendant: Brooklyn Creamery Co. v. Friday, 137 Wis. 461, 119 N. W. 126, 127.

Form No. 671. Denial of receipt of moneys..

Form No. 672. Defense of accounting and payment.

Page 1289

1289

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1290

1292

1292

1292

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§ 323. COMPLAINTS [OR PETITIONS].

FORM No. 667-For money had and received. (Common form.)

[Title of court and cause.]

19

9

The plaintiff complains of the defendant, and alleges: 1. That on the day of received from one E. F. the sum of $ plaintiff.

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the defendant

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payment thereof from the

FORM No. 668-On assigned claim for money had and received, etc.-Statement of cause in separate counts.

(In Miller v. Abrahamson, 9 Cal. App. 396; 99 Pac. 534.) [Title of court and cause.]

Plaintiff complains, and alleges:

1. That defendant is indebted to plaintiff in the sum of $622.10, for money had and received by defendant to and for the use of the plaintiff and L. P. Laursen within two years last past.

2. That no part of said sum has ever been paid, although demand therefor has often been made.

3. That prior to the bringing of this action the said L. P. Laursen assigned and transferred all his interest in said claim against defendant to plaintiff herein, and plaintiff is now the lawful owner and holder thereof.

And for a further and second count against defendant, plaintiff alleges:

1. That plaintiff is now, and for more than one year last past has been, a contractor, engaged, together with L. P. Laursen, in the city of Los Angeles, in the business of building houses, and that during said time defendant has had various subcontracts from plaintiff and Laursen for doing certain brickwork for plaintiff and Laursen; that plaintiff was accustomed to and did pay the defendant from time to time various sums of money upon orders or requests therefor made by defendant upon plaintiff and Laursen; and that the total amount paid by plaintiff to defendant on such orders and re

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