1. The plaintiff, if not entitled to recover upon the note, is entitled to recover upon the account. The giving the note is no payment of the account; and there is nothing in the record to show that it was so intendedor accepted. (Grifflth v. Grogan , 12 Cal. 317.)
2. The answer contains no sufficient denial of the indebtedness, and plaintiff was entitled to judgment upon the pleadings. But if not, then the finding is conclusive of every fact necessary to support the judgment.
3. The certificate of the Notary shows substantially that the depositions were read to the witnesses.
4. The action is upon the account, because it is set out, and the breach is as well for the nonpayment of the account, as for the nonpayment of the notes.
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
COPE, Judge
There is no sufficient denial in the answer of the account upon which the plaintiff sues. The pleadings are verified, and the complaint alleges that the defendants are indebted, etc., for goods, wares, and merchandise, sold and delivered to them at their request. The answer denies that they are indebted in the amount stated, but specifies no amount in which they admit themselves to be indebted. No effect can be given to such a denial.
The complaint shows that a note was executed for the amount of this indebtedness, but the objection that the account was thereby satisfied and discharged, is not well taken The note appears to have been executed without any agreement upon the subject, and its only effect was to extend the time of payment. Upon failure to pay, a right of action accrued upon the original demand, as well as upon the note. The case of Griffith v. Grogan , 12 Cal. 317, is conclusive of this point.
The insufficiency of the answer renders it unnecessary to examine the questions raised upon the introduction of evidence. It is proper to say, however, that even if the answer had been sufficient, the objections taken could not be sustained. The certificate of the Notary to the depositions of Sloss and Crocker, though somewhat informal, complies substantially with the requirements of the statute. It is not expressly stated that the depositions were read to the witnesses before signing, but the fact that they were either read to or examined by them appears by necessary implication. The certificate states that the depositions were corrected by the Notary under the direction of the witnesses; and this we deem to be sufficient.
The depositions could not be excluded on the ground that improper questions had been asked upon the examination. The objection on that ground should have been confined to these particular questions; and whatever errors may have intervened in that respect were waived by failing to take the objection in the proper manner. Judgment affirmed.