objection to bill of particulars california

Objection to bill of particulars california code#
Objection to bill of particulars california trial#

'An account stated is a writing that exhibits the state of the account between parties and the indebtedness claimed to be due from one to another, and if assented to by the debtor, either expressly or impliedly, it becomes a new contract.' An examination of those items was foreclosed by the very fact that the parties agreed upon a sum total after reviewing the account, excluding certain items and determining a balance.'Īs was said in Shapiro v. Appellant by his own testimony admitted the amount agreed upon hence an examination of the items which were considered in compromising the claim could not have been properly gone into at the trial. 'Plaintiff here did not sue upon an account, but upon a settlement agreement arrived at after a consultation between the parties.

Objection to bill of particulars california code#

551, 555, 556, in an action upon a compromise agreement, where objection was made to the introduction of any testimony because of the provisions of section 454 of the Code of Civil Procedure, the court said: 239, it was held that an account stated need not necessarily be in writing that the balance due may be acquiesced in or agreed to by parol.

60, it was held that in an action on an account stated, it is not necessary to prove the account or any of its items, but the proof in such a case is directed to the fact that the parties have accounted together and agreed upon the balance due that an account stated is an agreement between both parties that all the items are true and that the balance found due upon a stated account is principal it cannot be reexamined (except for fraud or mistake) to ascertain the items or their character that the term 'stated account' is but an expression to convey the idea of a contract, having an account for its consideration, and is no more an account than is a promissory note, or other contract, having a like consideration for its support. 'It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence therof.' Section 454 of the Code of Civil Procedure, as far as is here applicable, is as follows: In this connection plaintiffs contend that it was not necessary that they comply with the demand for a bill of particulars insofar as the second and third causes of action were concerned.

Objection to bill of particulars california trial#

The trial court, for that reason, sustained objection to evidence offered in support of the account stated and rendered judgment that plaintiffs take nothing by reason of their amended complaint. Plaintiffs failed to furnish such a bill or to furnish a copy of the account sued upon. In the second cause of action it is alleged that there was an account stated between the parties whereby it was determined that defendants were indebted to plaintiffs in the sum of $1,450, and in the third cause of action an account stated was alleged for the sum of $931.24.ĭefendant answered the amended complaint and demanded a bill of particulars. Three causes of action are set up in the amended complaint, in the first of which it is alleged that defendants became indebted to plaintiffs upon a book account in the sum of $2,250 for money had and received, which sum defendants agreed in writing to pay to plaintiffs that the demand for payment was refused and the whole amount is owing and unpaid.

Plaintiffs appeal from a judgment that they take nothing by reason of their amended complaint and awarding cross-complainants damages in the sum of $1,892.50. CRESCENT COMMERCIAL CORPORATION (a Corporation) et al., Respondents.