Spencer v. Vigneaux

Citations

• 20 Cal. 442
• 1862 Cal. LEXIS 63

Syllabus

<p>In an action upon a judgment, the judgment debtor may set up in bar of a recovery matters which were a proper ground of defense in the original action, accompanied with a showing that he was prevented from availing himself of the defense in the former action by his ignorance of the facts on which it rested, and that this ignorance was not imputable to any negligence or laches on his part.</p> <p>S. sued V., G. & D. to recover §22,000, alleged to be a balance due from them as partners on account of certain mercantile transactions. Defendant V., who was the managing partner of defendants’ firm, had unbeknown to his copartners made a payment of $10,000, which should have been credited upon the amount demanded by plaintiff, but of this fact G. and D. were kept in ignorance, and V., conspiring with the plaintiff to conceal the payment, induced his codefendants to suffer a judgment for the full amount claimed. Subsequently, G. and D. having paid on the judgment more than the amount for which it should have been rendered, discovered the fraud, and the present action having been commenced by S. thereon to recover the balance, they set up these facts as an equitable defense ; Held, that the defense was permissible, and sufficient to defeat the action, and that defendants were entitled to an injunction against the enforcement by plaintiff of the original judgment.</p> <p>Defendant D., in his answer, stated that he had been informed before the first trial that the $10,000 payment had been made by V., but that he was assured by V. that such was not the fact; that the papers and books of the firm were in W. ’s possession, and access to them could not be had, and that he had no per■sonal knowledge of the fact, or means of ascertaining or proving it upon the former trial: Seld, that this statement did not show such negligence or laches on D.’s part as to prevent him from now availing himself of the defense.</p> <p>It was not negligence on the part of D. to fail to make an appli