Waugenheim v. Graham
California Supreme Court
Appeal from the District Court of the Sixteenth District, County of Alpine. ' Suit was brought by the plaintiff to recover the amount, in gold coin, of two promissory notes, and for goods, wares and merchandise. At the commencement of the suit an attachment, in the usual form, was regularly issued, under which a large amount of property, belonging to the defendant, was seized.
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Appeal from the District Court of the Sixteenth District, County of Alpine. ' Suit was brought by the plaintiff to recover the amount, in gold coin, of two promissory notes, and for goods, wares and merchandise. At the commencement of the suit an attachment, in the usual form, was regularly issued, under which a large amount of property, belonging to the defendant, was seized. The defendant set up in defense an agreement by which the time of payment of the alleged indebtedness was extended to a period anterior to that at which the suit was commenced; and also stipulating that the same, when…
1Opinion of the CourtCrockett, J.
The evidence, offered by the defendant, to the effect that the time for the delivery of the lumber was extended by a *174parol agreement, was properly admitted. Whilst the rule is axiomatic, that the allegata et probata must correspond, and that whatever is essential to be proved must be sufficiently averred in the pleadings, we think that the rule was not violated in this case. The written contract required the lumber to be delivered by the first day of April, 1868; but the answer avers that it was to be delivered “at any time prior to the starting from defendant’s mill, of what is usually known…
2Cases cited1 opinion
- Luckhart v. OgdenCalifornia Supreme Court · 1866
3Cited by20 opinions
- White Lighting Co. v. WolfsonCalifornia Supreme Court · 1968
- Standard Box Co. v. Mutual Biscuit Co.California Court of Appeal · 1909
- Henehan v. HartCalifornia Supreme Court · 1900
- Leslie v. Brown Brothers IncorporationCalifornia Supreme Court · 1929
- Clark v. KelleyCalifornia Supreme Court · 1912
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