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stated accounts, especially as between partners, who alone understand their complicated affairs, and the mode in which their books are kept. If all partnership books were well and carefully kept, upon the same system, then the practice of opening up accounts would not be so doubtful. (Chappedelaine v. Dechenaux, 4 Cranch, 306, 308 [2 L. Ed. 629, see, also, Rose's U. S. Notes]; Wilde v. Jenkins, 4 Paige (N. Y.), 481, 495.)"

In White v. Thompson, 40 Cal. App. 447, 449 [180 Pac. 953, 954] (first district, division one), the rules governing the correction of an account stated are summarized as follows: "An account stated does not bar a recovery for items not within the contemplation of the parties when the settlement was made (Clarke v. Kelsey, 41 Neb. 766 [60 N. W. 138]; Lawler v. Jennings, 18 Utah, 35 [55 Pac. 60]); nor for those omitted by mistake; nor for such as were left open for further consideration. (Waldron v. Evans, 1 Dak. 11 [46 N. W. 607].) Parties to an account stated, signed by them, are not concluded by the presumption that it was a final settlement of all valid debts, debits, and credits, as to matters which were not contemplated by them, or which were not included in the settlement, though they existed at the time. (Treacy v. Powers, 112 Minn. 226 [127 N. W. 936].) Where an account has been adjusted by the parties, if any mistake is subsequently discovered, the whole account need not be opened and readjusted, but the mistake may be corrected and the rights of the parties readjusted as to such mistake. (Carpenter v. Kent, 101 N. Y. 591 [5 N. E. 787].)"

In Gardner v. Watson, 170 Cal. 570 [150 Pac. 994], the court made a statement covering what in law constitutes an account stated. It was there held that the writing constituting an account stated need not aver or at all contain the grounds and reasons for the conclusion and declaration expressed. It is a complete account stated if it contains a signed and written acknowledgment of a present, unqualified indebtedness or liability with a promise to pay a named sum. With reference to such an account, the court there said that while it is open to a defendant to repel the legal effect of the account stated by pleading and proof of its procurement through fraud, duress, mistake, or other grounds cognizable in equity for the avoidance of an instrument, yet it is not

open to a defendant to attempt to defeat the legal effect of such a contract by showing a lack of consideration in any other way. "Thus, it is not open to a defendant in such a case merely to show that the account stated was based upon a disputed claim of the plaintiff's which claim subsequently proved to be invalid. Nor would it be open to a defendant to show that the amount justly due was very much less than the amount named in the account stated."

It is not necessary to make a detailed statement of the various items of the accounting, as made by the referee and by the court, in order to exhibit their resulting effect in determining the amount of the judgment. It is sufficient to say that the judgment is solely the result of an accounting which purports to cover all of the transactions of the partnership and to arrive at a balance due as shown by the books and papers of the partnership and by testimony concerning the same, without giving to appellants the benefit of the fact that their right of action is based upon the notes held by them, and without any findings directed to the particulars in which errors occurred in the settlements made between the partners and based upon which settlements the notes in suit were executed.

[2] It was contended by counsel for respondent and was held by the court at the trial that by reason of the stipulation for a reference and the order of reference based thereon, the court was authorized "to enter into an accounting of this entire matter." And when counsel for appellant in discussing the referee's report stated the rule that a settlement made in good faith is presumed to be a good and fair settlement and that the presumption is in favor of that settlement, the court replied: "I think your stipulation wiped out the presumptions." We are of the opinion that the stipulation, made as it was in view of the pleadings of respondent and the affirmative claims made by respondent, is not subject to the construction thus put upon it by the court. If it had been intended to wipe out the notes entirely and to wholly disregard the settlements made, it would have been useless to provide in the stipulation, as it was provided, that the accounting should be taken as to the "correctness of all purported settlements." Likewise, it would have been unnecessary to further stipulate for amendments to the pleadings, as further facts affecting the subject matter should be

developed by the report of the referee. By reason of the erroneous theory thus adopted, and according to which the case was tried, notes received for a valuable consideration, and not in any way tainted with fraud, have been, by the judgment, reduced to less than half of their face value, without any finding of the facts whereby such reduction may be justified.

The judgment is reversed, and it is hereby directed that a new trial be had of the issues presented with relation to credits claimed by respondent by reason of errors or omissions in the settlement of said partnership affairs, whereby respondent claims the amount of said notes should be reduced. Thereupon, findings having been made covering said issues, a new judgment may be entered.

Curtis, J., concurred.

HOUSER, J., Dissenting.-I dissent. To my mind, the stipulation to which reference is herein made constitutes a complete waiver as to any rights arising out of the "account stated" and fully authorizes an entire accounting de novo.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 26, 1923.

[Civ. No. 2580. Third Appellate District.-May 29, 1923.] THEODORE AGALIANOS, Respondent, v. AMERICAN CENTRAL INSURANCE CO. (a Corporation), Appellant.

[1] FIRE INSURANCE-OCCUPANCY OF BUILDING PLEADING. In an action to recover on a fire insurance policy covering a building and its contents "only while occupied for mercantile and restaurant purposes," the complaint must allege that at the time of the fire the building was used for mercantile and restaurant purposes. [2] ID.

SUFFICIENCY OF COMPLAINT-WAIVER OF OBJECTIONS.-In an action to recover on a policy of fire insurance, an allegation to the effect that from the date of the issuance of the policy down to and including the day it was destroyed by fire "plaintiff was the

owner of the property. . . including the one-story frame building thereon occupied for mercantile and restaurant purposes" is sufficient, in the absence of demurrer or other timely objection to the pleading, to show that at the time of the fire the building was occupied and used for mercantile and restaurant purposes. [3] ID.-PAYMENT OF PREMIUM-EVIDENCE-FINDING.-In an action to recover on a policy of fire insurance and in which the defendant, by way of affirmative defense, pleaded the cancellation of the policy prior to the time of the fire, such defense being based upon a notice served by defendant upon plaintiff to the effect that a certain sum was due as premium and that unless such premium was paid within a specified number of days the policy would be canceled, the evidence was sufficient to justify the trial court in determining that the premium was paid by plaintiff to defendant's agent prior to the receipt of such notice and in finding that the policy was not canceled.

[4] ID. CANCELLATION CONTINGENT UPON NONPAYMENT OF PREMIUMCONSTRUCTION OF NOTICE. Notwithstanding a provision in a fire insurance policy giving either the insurer or the insured the right to cancel the policy at any time, without giving any specific or any reason therefor, a contingent notice by the insurer to the insured that a certain sum due as premium has not been paid and that "unless said premium be paid on or before five days from the date of service of this notice, said policy . . . will stand canceled for nonpayment of premium without further notice, and thereafter be null and void, and no liability will exist thereunder," will not effect a cancellation of the policy where the insured pays such premium within the time specified or has paid the same prior to the receipt of such notice.

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[5] EVIDENCE-SUSTAINING OF OBJECTIONS ABSENCE OF ERROR. cannot be held that the rulings of the trial court sustaining plaintiff's objections to certain questions asked of a witness for the defendant were erroneous, where it is apparent that even if the court had allowed the questions the witness would not have been able to give any more satisfactory answers thereto than he had given to questions previously propounded to him and which called for the same testimony.

[6] ID. INCOMPETENT

TESTIMONY-CROSS-EXAMINATION.-Cross-examination is not allowable as to incompetent testimony to the admission of which no objection is made. [7] ID. IMPEACHMENT OF OWN WITNESS FOUNDATION. One may cross-examine his own witness for the purpose of laying the foundation for his impeachment and so impeach him, if he can,

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4. What time notice of cancellation of fire insurance becomes effective, notes, Ann, Cas. 1918C, 120; 39 L. R. A. (N. S.) 829.

if he is taken by surprise by the testimony given by such witness; but the surprise which will open the way to such a course must be substantial and must be founded not only on the fact that the witness has given testimony at variance with what the party producing him as a witness had good reason to believe, before calling him to the witness-stand and examining him, that it would be, but that such testimony is prejudicial or detrimental to the case of such party.

[8] ID. SUFFICIENCY OF EVIDENCE-APPEAL-SPECIFICATION OF ERROR. The sufficiency of the evidence to support a particular finding is not subject to review on appeal where the bill of exceptions contains no specification of the insufficiency of the evidence to support such finding.

[9] FIRE INSURANCE-TERMINATION-SUFFICIENCY OF NOTICE.-Where a fire insurance policy gives the insurer the right to cancel the policy at any time, without giving any specific or any reason therefor, a written notice that a certain sum due as premium has not been paid and that "unless said premium be paid on or before five days from the date of service of this notice, said policy. . . will stand canceled for nonpayment of premium without further notice, and thereafter be null and void, and no liability will exist thereunder," will operate, ipso facto, to cancel the policy, if the insured fails to pay the premium within the time specified. modification of opinion.)

(On

APPEAL from a judgment of the Superior Court of San Joaquin County. J. A. Plummer, Judge. Affirmed.

The facts are stated in the opinion of the court.

Coogan & O'Connor and Arthur L. Levinsky for Appellant.

Stanley M. Arndt, N. A. Brown and George F. McNoble for Respondent.

HART, J.-The plaintiff sued to recover on a policy of insurance, issued by the defendant to the plaintiff, and covering a certain building and the contents thereof. situated in Lodi, San Joaquin County.

The action was tried by the court, the parties thereto having expressly waived a trial by jury. The plaintiff was awarded judgment in the sum of $1,800, which is the amount of the risk provided in the policy. A motion for a new trial was made by the defendant and denied by the court.

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