Murphy v. Oregon Engraving Co.

BURNETT, J.

It will be noted that the complaint does not show that Matthews had anything to do with the stating of the account. Neither does it show that any previous relation giving rise to debits' or credits existed between him and the defendant. Strictly speaking, it does not show that the labor and services mentioned were performed by him or for the defendant. It is not averred in the complaint by whom the balance of the account was transferred to the plaintiff. No effort was made, so far as disclosed by the record, to correct the complaint in these particulars.

1, 2. The important error, however, is found in the ruling of the court striking out the matter from the answer relating to the novation mentioned. In his *537 brief tbe plaintiff contends that the motion to strike those averments from the defendant’s pleading was not allowed. On that point we are bound by the statement in the abstract, to which no objection seems to have been urged. Sham, frivolous and irrelevant matter may be stricken out of a pleading, but its legal sufficiency as matter of defense must be tested by a demurrer. The new matter in the answer is subject to the criticism that it does not sufficiently show that the transaction involved in the novation was the same that the complaint described, but the motion was not sufficient to raise that question. The matter is certainly not frivolous, sham or irrelevant. If, in fact, the defendant owed Matthews and he owed Bobinson, it was legitimate subject of contract that the defendant should' pay Bobinson for Matthews, instead of paying the latter direct, and if performed this would constitute a good defense to this action.

3. In pleading an account stated, it is much safer to show that .some previous relation existed between the parties to the accounting, giving rise to debits or credits. We cannot conceive of an accounting for liability upon a tort. Neither is it proper to rest a stated account upon a liquidated demand already agreed upon and which either party is bound to pay, as, for instance, a promissory note alone, although such an instrument might be included among numerous other items of debit and credit existing between the accounting parties.

Neither party seems to have stated its case in the pleadings with model accuracy. Better statements may be accomplished by amendments, but, principally for the reason that by striking out the new matter of the answer the defendant was deprived of the right to prove a discharge of its indebtedness to Matthews *538 by the new contract of novation, the judgment,is reversed and the cause remanded to the Circuit Court for further proceedings. Reversed and Remanded.

McBride, C. J., and Bennett and Harris, JJ., con- ' cur.