McCarthy v. Mt. Tecarte Land & Water Co.

Citations

• 110 Cal. 687
• 43 P. 391
• 1896 Cal. LEXIS 535

Syllabus

<p>Assignment op Claim—Notice—Subsequent Settlement with Assignor. Where a claim for goods, wares, and merchandise, sold and delivered to a corporation, has been assigned to another person, and notice of the assignment given to the corporation, a subsequent settlement of accounts with the assignor cannot relieve the corporation from its liability for the debt previously transferred to the assignee.</p> <p>Assumpsit—Bill op Particulars—Time op Delivery—Objection to Evidence.—Where a demand is made upon the plaintiff in an action of assumpsit for a bill of particulars, and such bill is delivered six days after the demand, and more than forty days before the trial an objection made upon the trial to the reception of any evidence upon the ground that the bill of particulars had not been served within five days after the demand, no objection having been made to the sufficiency of the account as furnished, the objection to the reception of evidence is properly overruled.</p> <p>Id.—Construction op Code—Discretion op Court.—The object of section 454 of the Code of Civil Procedure, requiring a party to deliver to his adversary within five days after the demand a copy of an account sued upon, or be precluded from giving evidence thereof, is to protect the adverse party from embarrassment upon the trial, by enabling him to demand and obtain in advance a detailed statement of the items charged against him, and the trial court has a sound discretion whether to exact the penalty of precluding the plaintiff from giving evidence thereof or not; and if the demand is not complied with, the prescribed penalty may be exacted for refusal or gross neglect; but if the demand» ant receives a sufficient copy long enough before the trial to enable him to examine it and prepare his defense, so far as he is concerned the statute has fulfilled its usefulness.</p> <p>Id.—Objection Previous to Trial.—Where a party receiving a bill of particulars, which is for any reason objectionable, proposes t