Joshua Hendy Machine Works v. Pacific Cable Construction Co.

Citations

• 99 Cal. 421
• 33 P. 1084
• 1893 Cal. LEXIS 683

Syllabus

<p>Reference of Action for Balance of Account—Consent of Parties—Exception—Waiveb of Ebrob.—An order by the court in an action to recover a balance of account for goods sold and delivered and work and labor performed, referring the cause to a referee “ to state an account between the parties and report a judgment and findings ” in the case, is in effect a reference of the whole case for trial, and is not authorized by the code, except upon agreement of the parties; but if the unsuccessful party did not reserve any exception to the order of reference, he cannot urge the error as a ground for the reversal of the judgment by the supreme court.</p> <p>Id.—Pleading — Admission of Cbedits—Value of Goods and Labob—Findings Contbaky to Admission.—In an action to recover the balance of an account for goods sold and delivered, and wort and labor performed, where the complaint sets up the credit and debit sides of the account, and alleges that the defendant has paid a specified sum thereon, the plaintiff cannot recover unless the agreed price or value of the goods and labor exceeds the amount admitted to have been paid in the complaint, which admission concludes the plaintiff when not put in issue by the answer, and findings by the court that the goods and labor were of less value than alleged, and that the payments were not so large as alleged in the complaint, are contrary to the admissions of the pleadings, and cannot support a judgment for the plaintiff for a balance found to be due him.</p>