Opinion
Department One
Appeal from a judgment of the Superior Court of San Joaquin County. W. E. Greene, Judge.
COUNSEL:
The plaintiff's action being upon contract, defendant could counterclaim any causes of action arising on contract. (Code Civ. Proc., sec. 438.) The seed and feed were all furnished on Herd's account, under a new and changed lease; and the accounts were all charged against him. The allowance of interest was unauthorized. (Code Civ. Proc., sec. 1917; Cox v. McLaughlin , 76 Cal. 71; 9 Am. St. Rep. 164; Bank of California v. Northam , 51 Cal. 387.)
Freeman & Bates, for Appellant.
J. H. & J. E. Budd, and Fitzgerald & Abbott, for Respondent.
Partnership claims cannot be counterclaimed, since no action at law will lie upon them; and a counterclaim is a cause of action which might be sued upon in a separate action. (Belleau v. Thompson , 33 Cal. 495.) Books of original entry are not conclusive as to the one to whom credit is given, and may be explained. (Winslow v. Dakota Lumber Co ., 32 Minn. 237; Allen v. Fuller , 118 Mass. 402; Swift v. Pierce, 13 Allen, 136; Peck v. Von Keller , 76 N.Y. 604; Rice v. Heath , 39 Cal. 609; Holmes v. Hunt , 122 Mass. 505; 23 Am. Rep. 381.) The allowance of interest after filing the complaint was proper. (1 Sutherland on Damages, 615, 616.)
OPINION
THE COURT Defendant and one John Herd, Jr., formed a copartnership for the purpose of farming a large tract of land; a memorandum of their contract was in writing, dated August 20, 1891, and one of its provisions was that Herd, as his contribution to the expense of ploughing and seeding the land for the first year, would furnish all seed and feed, "such feed in no case to exceed the sum of fifteen hundred dollars." October 3, 1891, Herd assigned his interest in said contract to Lane, the plaintiff, who was a grain dealer at Stockton; such assignment being in terms "security for feed, grain, and seed furnished to put the land in." On October 7, 1891, Herd wrote to defendant a letter containing this statement: "I arranged on Saturday last with the Lanes at Stockton to provide you, as per agreement, with the seed and feed you require. Therefore, kindly write them direct and they will forward the same." Defendant took the letter to plaintiff, who indorsed thereon, "Accepted: Frank E. Lane." Upon the order of defendant, plaintiff shipped to him before December 31, 1891, feed to the amount in value of three thousand one hundred and thirty-eight dollars and thirty-eight cents. The purpose of this action is to recover the sum of sixteen hundred and thirty-eight dollars and thirty-eight cents, the excess in value of the feed thus supplied above that which Herd promised to furnish, and the further sum of one hundred and twenty-one dollars, cash advanced for freight on the same. The complaint is in the ordinary form for the value of goods sold and delivered, and for money paid to the use of defendant.
In his answer defendant first denied the allegations of the complaint, and then in a separate paragraph -- numbered IV -- alleged matters which, if true, showed that plaintiff sold the feed and paid the money in question to and for Herd only. He also pleaded as counterclaims, on information and belief, that in February, 1892, plaintiff succeeded to the interest of Herd in said partnership, and is indebted to defendant on account of certain described transactions of the partnership, and separately, that plaintiff owes him the sum of fifty-two dollars for boarding one Harry Lane at plaintiff's request. Plaintiff demurred to the answer and to the counterclaims. The court ordered that "the demurrer to that part of the answer alleging counterclaims, paragraphs 4 and 6, be sustained."
At the trial, judgment went for plaintiff, and included two hundred and thirty-four dollars for interest on his demands from the time of the commencement of the action to date of judgment -- October 8, 1892, to September 5, 1894.
The principal question before the trial court was one of fact. Herd directed Lane to supply Turner with the seed and feed he required "as per agreement"; and with this direction as part of his arrangement with plaintiff Turner received the goods. The court, upon conflicting evidence, determined that the agreement thus referred to and incorporated into the contract with plaintiff was the stipulation of the original partnership contract, unchanged as claimed by defendant. Consequently, defendant was chargeable with notice that Herd's credit for the feed procured from plaintiff was limited to the sum of fifteen hundred dollars, and he was himself liable for what he ordered in excess of that amount. (Civ. Code, secs. 2318, 2443.) The fact in proof that all the goods were originally charged against Herd on the books of plaintiff was pertinent, but not conclusive evidence, in ascertaining who was the real purchaser, and was open to explanation. (Rice v. Heath , 39 Cal. 609.)
[46 P. 291] As to the averments of indebtedness of plaintiff to defendant, arising out of alleged partnership transactions between them -- mere unadjusted claims which might be the subject of an accounting -- it is not, and hardly could be, seriously contended that they constitute proper counterclaims in this action. (Case v. Maxey , 6 Cal. 276; Haskell v. Moore , 29 Cal. 437.) But the counterclaim of fifty-two dollars for boarding Harry Lane was valid, and the demurrer thereto should have been overruled; plaintiff concedes this, and consents that the judgment be reduced accordingly.
The court properly allowed interest on the plaintiff's demands from the filing of the complaint. (Civ. Code, sec. 3287; Pacific Mut. etc. Ins. Co. v. Fisher , 106 Cal. 224.) In this case it was held that, in the absence of an agreement to pay at a specific date for goods purchased, the vendor would be entitled to interest from the time of filing his complaint, the court saying: "At the time he commenced the action, his right to recover the open account was vested in him, and was capable of being made certain by calculation, and he was entitled to recover interest thereon from that date."
The superior court is directed to modify its judgment by deducting therefrom the sum of fifty-two dollars as of its date of entry, and, as so modified, the judgment and order denying a new trial are affirmed.