181 Cal. 479, L. A. 5242, Union Oil Company of California v. Purissima Hills Oil Co.

• Docket Nº: L. A. 5242
• Citation: 181 Cal. 479, 185 P. 381
• Opinion Judge: MELVIN, Judge
• Party Name: UNION OIL COMPANY OF CALIFORNIA (a Corporation), Respondent, v. PURISSIMA HILLS OIL COMPANY (a Corporation), Appellant
• Attorney: Manning, Thompson & Hoover and Jacob Goldberg, for Appellant. Glen E. Huntsberger, for Respondent.
• Judge Panel: JUDGES: Melvin, J. Wilbur, J., and Lennon, J., concurred.
• Case Date: October 29, 1919
• Court: Supreme Court of California

Page 479

181 Cal. 479

185 P. 381

UNION OIL COMPANY OF CALIFORNIA (a Corporation), Respondent,

v.

PURISSIMA HILLS OIL COMPANY (a Corporation), Appellant

L. A. No. 5242

Supreme Court of California

October 29, 1919

Department Two

APPEAL from a judgment of the Superior Court of Los Angeles County. Fred H. Taft, Judge.

Affirmed.

COUNSEL:

Manning, Thompson & Hoover and Jacob Goldberg, for Appellant.

Glen E. Huntsberger, for Respondent.

JUDGES: Melvin, J. Wilbur, J., and Lennon, J., concurred.

OPINION

MELVIN, Judge

Plaintiff sued on two counts: One for balance due for goods, wares, and merchandise sold at an agreed price; the other for the reasonable value of such goods. The judgment was in favor of plaintiff for the full amount demanded. Defendant appeals.

The goods sold and delivered by plaintiff's assignor consisted principally of casing necessary for the use of defendant in the creation of an oil well on its property. The merchandise

Page 480

was delivered between the 31st of January and the 31st of August, 1911. Defendant paid one thousand five hundred dollars on account. The judgment prayed for and given was for a balance of $ 2,791.25. The complaint was filed July 8, 1916, more than four years after the last delivery of supplies to defendant, but it was alleged by the plaintiff and found by the court that within four years of the institution of the suit defendant acknowledged the indebtedness in writing and thereby promised and agreed to pay the amount due.

Defendant, by its answer, denied the indebtedness and alleged that the sum of one thousand five hundred dollars paid was the full and reasonable value of the goods, denying also that any certain price had been agreed upon. The answer also set up the bar of sections 337 and 339 of the Code of Civil Procedure; and by way of counterclaim averred breach of warranty in that the casing supplied was entirely unfit for the purpose for which plaintiff's assignor had warranted it. The damage caused by such breach of warranty was placed by the pleadings at five thousand dollars, but in this part of the answer defendant prayed for nothing more than that plaintiff take nothing by its suit.

Plaintiff's general demurrer to the part of the answer averring a counterclaim was sustained, admittedly upon the ground that such claim was barred by the statute of limitations.

At the trial defendant offered no proof regarding the reasonable value of the property purchased, the only issue being whether or not the statute of limitations operated in favor of the defendant. This issue was determined in favor of the plaintiff.

Appellant insists that the judgment should be reversed because of error in sustaining plaintiff's general demurrer to defendant's counterclaim and error of the trial court in holding that plaintiff's claim was not barred. Undoubtedly, the bar of the statute of limitations should have been set...