Opinion
[Syllabus Material] Rehearing Denied 18 Cal. 331 at 333.
Appeal from the Tenth District.
The complaint, verified, avers, in substance, that Feb. 17th, 1859, defendants, as the firm of Wortell & McDonald, being indebted to Sloss & Co. eight hundred and twenty-eight dollars and sixteen cents, upon a balance of account for goods, wares, and merchandise sold and delivered by said firm of Sloss & Co. to said defendants, and which sum they promised to pay, etc., Sloss & Co. assigned said account and indebtedness to plaintiff; that in consideration of said indebtedness, defendants executed and delivered to plaintiff their promissory note as follows, to wit:
" $ 828 16. " Sacramento, Feb. 17th, 1859.
" One day after date, for value received, we, or either of us, promise to pay to the order of Felix B. Higgins, eight hundred and twenty-eight dollars and sixteen cents; the same being for balance of account due from us to Louis Sloss & Co., and assigned by them to said Higgins. (Signed) F. Wortell & McDonald."
Which note and sum of money, long since due, defendants have failed to pay. Wortell made default. McDonald answered, denying his partnership with Wortell at the time named; and denying that as such firm they were indebted to the said Louis Sloss & Co. in the sum of eight hundred and twenty-eight dollars and sixteen cents, as is set out in said complaint; or that he ever executed the note, or that Wortell had any authority, as partner or otherwise, from him to sign his name.
The point as to the depositions arose in this way. On the trial, plaintiff offered in evidence the depositions of Louis Sloss and E. B. Crocker, which were objected to by defendant McDonald " on the ground of the insufficiency of the Notary's certificate attached thereto, and the objections stated in said depositions at the time of the taking the same to the questions and answers therein." Objections overruled; defendant excepting; and depositions read.
The certificate of the Notary--after stating that the witnesses appeared before him, and were duly sworn, etc.--runs: " were examined by George Cadwalader, of counsel for defendant, and A. S. Higgins, for plaintiff, and the testimony by me reduced to writing, and by me corrected as by them requested, when the same were severally subscribed by the respective witnesses, in may presence, and by me duly attested."
The Court below found for plaintiff as to the substantial allegations of the complaint; and, as to the partnership, that defendants were partners, and as such, indebted to Sloss & Co. in the sum claimed in the fall of 1858; but that the firm was dissolved, and that Sloss & Co. had notice of the dissolution in September, 1858, and gave judgment accordingly. Defendant McDonald appeals.
COUNSEL:
1. The certificate of the Notary should state that the depositions were read over to the witnesses before signing. (Williams v. Chadbourne , 6 Cal. 559; 2 Id. 383; Id. 25.) The questions put in the depositions were irrelevant, being as to the account, while the suit was on the note.
2. The acceptance of the note by plaintiff, a third party, discharged the partneaship debt. (Isler v. Baker, 6 Humph. 85; Fenn v. Goodrich, 2 Johns, 213; Frisbie v. Larned, 21 Wend. 450; 24 Ala. 439; Story on Part. sec. 155.)
C. E. Filkins, for Appellant.
Heydenfeldt, for Respondent.
1. The plaintiff, if not entitled to recover upon the note, is entitled to recover upon the account. The giving the note is no payment of the account; and there is nothing in the record to show that it was so intendedor accepted. (Grifflth v. Grogan , 12 Cal. 317.)
2. The answer contains no sufficient denial of the indebtedness, and plaintiff was entitled to judgment upon the pleadings. But if not, then the finding is conclusive of every fact necessary to support the judgment.
3. The certificate of the Notary shows substantially that the depositions were read to the witnesses.
4. The action is upon the account, because it is set out, and the breach is as well for the nonpayment of the account, as for the nonpayment of the notes.
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
COPE, Judge
There is no sufficient denial in the answer of the account upon which the plaintiff sues. The pleadings are verified, and the complaint alleges that the defendants are indebted, etc., for goods, wares, and merchandise, sold and delivered to them at their request. The answer denies that they are indebted in the amount stated, but specifies no amount in which they admit themselves to be indebted. No effect can be given to such a denial.
The complaint shows that a note was executed for the amount of this indebtedness, but the objection that the account was thereby satisfied and discharged, is not well taken The note appears to have been executed without any agreement upon the subject, and its only effect was to extend the time of payment. Upon failure to pay, a right of action accrued upon the original demand, as well as upon the note. The case of Griffith v. Grogan , 12 Cal. 317, is conclusive of this point.
The insufficiency of the answer renders it unnecessary to examine the questions raised upon the introduction of evidence. It is proper to say, however, that even if the answer had been sufficient, the objections taken could not be sustained. The certificate of the Notary to the depositions of Sloss and Crocker, though somewhat informal, complies substantially with the requirements of the statute. It is not expressly stated that the depositions were read to the witnesses before signing, but the fact that they were either read to or examined by them appears by necessary implication. The certificate states that the depositions were corrected by the Notary under the direction of the witnesses; and this we deem to be sufficient.
The depositions could not be excluded on the ground that improper questions had been asked upon the examination. The objection on that ground should have been confined to these particular questions; and whatever errors may have intervened in that respect were waived by failing to take the objection in the proper manner. Judgment affirmed.