Tustin Packing Co. v. Pacific Coast Fruit Auction Co.

Action in assumpsit, it being alleged that defendant became indebted to plaintiff in the sum of $417.87 for money had and received to the use and benfit of plaintiff. This allegation except to the extent of $122.97, which defendant admitted, having received for plaintiff's use, was denied by the answer, it being affirmatively alleged therein that defendant had, prior to the commencement of the suit, tendered the same to plaintiff and at all times since the making of such tender had been ready, able, and willing to pay the same. No evidence whatever was offered by plaintiff in support *Page 275 of the allegation of its complaint so specifically denied by defendant; nor did defendant offer any evidence other than in support of the alleged fact that it had tendered to plaintiff the $122.97, admitted to have been received by it, and which issue the court found in favor of plaintiff. The court gave judgment for plaintiff in the sum of $232, from which, and an order denying its motion for a new trial, plaintiff appeals, claiming that judgment should have been for the full amount sued for. As stated, notwithstanding the fact that the allegation of the complaint as to the indebtedness…

Action in assumpsit, it being alleged that defendant became indebted to plaintiff in the sum of $417.87 for money had .and received to the use and benfit of plaintiff. This allegation except to the extent of $122.97, which defendant admitted having received for plaintiff’s use, was denied by the answer, it being affirmatively alleged therein that defendant had, prior to the commencement of the suit, tendered the same to plaintiff and at all times since the making of such tender had been ready, able, and willing to pay the same. No evidence whatever was offered by plaintiff in sup *275 port of the allegation of its complaint so specifically denied by defendant; nor did defendant offer any evidence other than in support of the alleged fact that it had tendered to plaintiff the $122.97, admitted to have been received by it, and which issue the court found in favor of plaintiff.

The court gave judgment for plaintiff in the sum of $232, from which, and an order denying its motion for a new trial, plaintiff appeals, claiming that judgment should have been for the full amount sued for.

As stated, notwithstanding the fact that the allegation of the complaint as to the indebtedness was,…

The petition for a rehearing herein is denied. vTo our minds, the letter referred to in appellant’s brief, and asserted by its counsel “without fear of question, doubt or correction” to be an admission of plaintiff’s claim, constitutes no evidence of an admission on the part of defendant of other than an indebtedness of $122.97.