| [$1000.] |
San Francisco, Oct. 30, 1851. |
| Messrs. Annan, Lord & Co. |
The answer contains a general denial of defendants' indebtedness. This is proper within the Practice Act. (Sec. 46:3 Code R. 39.) Under this issue of non-indebtedness, any evidence in support of it was relevant and proper. (Gould's Plead. 336, ch. vi. sec. 59; Steph. Plead. 104, 83.) If the evidence was improper, it should have been objected to on the trial. If then objected to, defendants might have amended their answer, and introduced the particular facts to be given in evidence. ( 4 Wend. 277; 1 N.Y. 94: 1 Den. 522; 3 do. 116; 5 Cow. 127.) If the Court can see, that a new trial would result for respondent upon an amended answer, specifying the facts in evidence, it ought not to be granted. ( 2 Johns. 47, 48; 3 Johns. Ca. 258.) The evidence adduced sustained the issue, and made out a case of accord and satisfaction. (3 Chit. Pl. 924; 3 Johns. Ca. 245, 8; 1 Chitty, p. 482, 578; 1 Smith's Lead. Ca. 325.) The complaint shows no cause of action.
The issue of non-acceptance should have been found for defendant. (Smith's Mer. Law, 196; 3 Kent's Com. 74.)
HEYDENFELDT, Justice, delivered the opinion of the Court, with which MURRAY, Chief Justice, concurred.
OPINION
HEYDENFELDT, Justice
This was a suit upon an acceptance. The defendants' answer is a general denial. Under this they proved accord and satisfaction. It is now objected that this defense ought not to be allowed under the pleadings. We have already decided that a general denial has the same influence as the general issue at common law, and under that, accord and satisfaction may well be shown. The accord and satisfaction consisted in the delivery of a certain quantity of goods, which were of less value than the debt; and the appellant invokes the principle that a liability cannot be discharged by a less sum than what is due. However well this doctrine is settled in relation to payments in money, it has never been extended to a case like the present, where merchandise or property in gross, is accepted in satisfaction.
Judgment affirmed with costs.