Terry v. Sickles

Citations

• 13 Cal. 427

Syllabus

<p>Where, in suit on an account stated, the only evidence was that of a witness who said defendant, on presentation of the account, admitted it to be correct and promised to pay it, and the Court charged the jury that, if they believed the testimony of the witness, they must find for plaintiff' the amount claimed; and they so found, lldd: That the instruction did not prejudice defendant, as hut one verdict could have been rendered under the evidence.</p> <p>To sustain an action on an account stated, it must be shown there was a demand in favor of plaintiff acceded to by defendant. And if defendant does not object to the account as presented, within a reasonable lime, his silence will be an admission of its correctness.</p> <p>In such action evidence that the items of the account arc overcharged is not admis- ■ sible, the complaint being verified, and the answer not averring fraud or mistake in the accounting.</p> <p>Query: Whether such evidence would he admissible under a general denial if the pleadings were not verified ?</p> <p>Where the pleadings arc verified, every matter of defense, not directly responsive to tile allegations of the complaint, must be set up in the answer.</p>