41 Cal. 661, 2,831, Gannon v. Dougherty

Docket Nº:2,831
Citation:41 Cal. 661
Opinion Judge:WALLACE, Judge
Attorney:H. F. Crane, for Appellant. James Mee, for Respondent.
Judge Panel:JUDGES: Wallace, J. Mr. Justice Crockett did not participate in the foregoing decision.
Case Date:July 01, 1871
Court:Supreme Court of California

Page 661

41 Cal. 661




No. 2,831

Supreme Court of California

July, 1871

Page 662

Appeal from the District Court of the Fifteenth Judicial District, City and County of San Francisco.

This was an action upon a contract entered into by the parties in April, 1865, by the terms of which defendant was to pay plaintiff two thousand one hundred dollars in gold out of certain moneys to be collected for street work in San Francisco. The defendant, in his answer, set up as a counterclaim that plaintiff had made a promissory note for one thousand dollars to one Babcock, and that afterwards Babcock indorsed, assigned, transferred, and delivered it to defendant, who was the owner and holder thereof, and that no part of it had been paid; also, that plaintiff was indebted to defendant in the sum of one thousand five hundred dollars for work and labor done and performed at plaintiff's request.

The plaintiff demurred to the answer, in so far as it set up a counterclaim, on the ground that it did not appear therefrom when said note was made or delivered, or when it was made payable, or that the same was at the time of filing said answer due, or that said note was given for a valuable or any consideration; also, that it did not appear when or where said work and labor was done or performed, or the nature or kind of such work and labor.

The demurrer was sustained, and afterwards defendant, declining to amend, and there being a judgment for plaintiff, and motion for new trial overruled, defendant appealed.


H. F. Crane, for Appellant.

The averment of the date of the note in the counterclaim was not necessary to constitute a cause of action. It could only be important in view of the statute of limitations; and that statute could not be taken advantage of, except by being specifically pleaded. The general demurrer did not reach the point. (Green v. Palmer, 15 Cal. 416; Maynard v. Talcott, 11 Barb. 569; Frisch v. Coler, 21 Cal. 71.)

The usual count for work and labor does not show that the value thereof is due; but the Court will presume it due; and if not due, it is a matter of defense. The same may be said as to the matter of consideration of the note.

The answer gave the plaintiff sufficient notice of the counterclaims, and the Court below erred in sustaining the demurrer. (Wallace v. Bear River M....

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