GUSTAV C. LANDIS et al., Respondents, v. M. J. MORRISSEY, Appellant, 69 Cal. 83

Summary

The purchaser was the sole surviving partner in a merchandising partnership. The purchaser alleged that the trial court erred in sustaining the sellers' objection to the purchaser's offer of proof that the merchandise was sold on credit of 60 days and the 60 days had not expired at the time the suit was commenced. The trial court held that the proffered testimony was not within the issues raised by the pleadings and was new matter that should have been specially pleaded. The court held that the trial court erred in excluding the proffered evidence. The court held that the evidence did not pertain to new matter or to matters that arose after the cause of action commenced. It was an offer to prove that the cause of action had not accrued when the action was commenced. The evidence went to the merits of the action to show that there was no cause of action when the suit was commenced.