* * * [A]s regards the time factor ONLY:* you contracted for delivery of milk from your national dairy,* the quantity . . . and charge [to be] determined by what you take/get from the . . . deliver[er]. The driver . . .of the cart conveys the details to his boss . . . [but the] accounts department [carelessly or deliberately makes mistakes about sums delivered and funds due on its records].* the[ accounts department acknowledges but also tries to explain away these errors and in effect say the customer] should just report the errors (at your cost) when they occur, and they will adjust your account accordingly.* [T]o [try to] force the matter into court . . .
Earthlink @ Mindpsring.com wrote:-
.. . . you plainly do not mean "force" and, instead, just try to trigger (or by passive-aggressive behavior try to induce) a lawsuit whereas it was open to the customer actually to "force the matter into court" by the customer doing exactly that (i.e., suing) . . .
Correct. I don't believe human speech/text can nearly approach
. . . for an exposure/resolution of the matter [and it is postage-expensive and also annoying to the customer to write complaint letters].
This is still another reason why the actually dilligent if also actually sensible customer who genuinely wants to "force" a resolution ought sue.
The (possible wrong) logic is that 'suing is expensive' in this
applicable (non functioning) society.
Provided you know you are right, provoke the big boy to sue.
[Rather than sue, the customer writes letters] treatening to withhold payment. This of course is a way in effect to say, "Please sue me!" although it is (as you have learned but should have known) also a potentially dangerous ploy if, f'rinstance, there is some (whether careless or deliberate: I do not know) screw-up in notifying the customer of the lawsuit by the creditor which does result.
Again (perhaps naively) one assumes safety, provided you don't
do anything unjust, and you collect all the evidence of each of
your steps, your incompetent/corrupt opponent will eventually
fall in the hole - provided they don't assasinate you before hand.
One who wants to presume the correctness of all the facts as you here posit them, and thus for the sake of analysis corespondingly presumes that the milk supplier has made the billing and related errors you posit, will therefore also have to note that a key element of the "facts" as you state them is that the customer is a very impractical (if also cantankerous) fellow (ain't it usually a man?) who, contrary to his own self-interest, chooses to deal with the problem (more precisely: not deal with the problem) in probably the least efficient manner available.
From the date at which you start with-holding payment, the true and faulty state of the accounts is (simplified) . . .Month Bill True amount owed================================1 $11 $102 $22 $203 $33 $304 $44 $405 $55 $502 $66 $603 $77 $704 $88 $80
Regardless whether you were as confused or careless in the [r]eal-life itemization you "simplify" above (note the repetition of months "2" and "3" and "4" though you begin your posting with a representation that you will recite the facts in "chronological" order and preface the table itself with a "From the date . . ." characterization), i.e., regardless whether you are referring immediately above to eight or just to five months, this is just another way to say that the customer has more than more than more than suffient notice about the errors and time to commence a lawsuit bringing the matter to a head.
If I'm not mistaked the above 9 lines is ONE sentence.
And I don't understand it. Or perhaps you are saying, the table which
spans 8 months, clearly shows 8 continuous months of errors - ample
'evidence' and "time to commence a lawsuit". That's true.
Otherwise, it is just a way still again to repeat that the customer and the company disagreed about the sums due during and which became payable for the months in question
Now we get to the time sequence/relationship, [which seems to be a problem with verbal-types /legal-people]. The "problem" in your postings is that you don't state the facts clearly, that you interrupt yourself, and that you do this in a repetitive manner which deflects attention from the signficant matters about which you purport to ask.
Apparently. And I don't know how to 'fix' that, without a brain
* [As expected, y]ou receive a demand letter from the dairy . . . [at a corresponding date] for the month 3 bill, demanding $33 . . . .* You receive a demand letter from the dairy's lawer, at month 5 demanding $33 (which you assume is based on the previous demand letter and the same [faulty] bill of month 3).
Unless there is something in the letter itself which supports what you say you here "assume" (though you do not say that there is), there might be any number of reasons (or "assumptions") why the lawyer wrote this letter.
Well, if the demand letter from the dairy's lawer is not grounded on
the dairy's demand letter (and, yes nothing 'in the letter itself
supports' my assumption) then my whole argument is void.
BTW in the area of jurisdiction applicable (south africa) they have
lots of mention about "reasonable". I think also w.r.t. assumptions.
Doesn't that also apply to legislation in which you are trained ?
You having said in other related postings that the lawyer's letter to which you here refer was no more than a demand for payment (of an incorrect) sum, one option was to respond, "I dispute the statements in your letter."
I think that analysing the infinite alternate possibilities, just causes
loss of focus on the core issues ?
* A summons is issued in month 6 (which you don't receive, but which [non-receipt] is irrelevant to our discussion of time, and 'cause of action') claiming $33. The "cause of action" as actually stated was something to the effect, "defendant owes plaintiff $33 for goods/services sold, delivered, and accepted" (and unless/until you have cited a statutory or rule or caselaw ruling to the effect that more than that is need to state a "cause of action" in the court of interest to you one ought presume that no more than such an allegation is needed).
That sounds good. But what I actually want is the DATE of cause of
action (which to me is implied by your $33 figure), and secondly
(although obvious) WRITTEN acknowledgement that DATE of cause
of action cannot MOVE.
Q1. does the month 5 demanding letter for $33 include the milk supply for months 4 and/or 5 ? You haven't actually quoted the letter as you posit it here. Therefore, all one may legitimately conclude about the letter is that it was mailed (and, you seem to imply, was dated) in the fifth month and says to the customer, "pay us $33".
Q2. does the month 6 issued summons claim for $33 include the milk supply for months after month 3 ?
Unless and to the extent (if at all) that it states otherwise (you do not here say), it "includes" whatever sums and months it says it covers.
Just re-read your sentence.
The letter does not state what "months it says it covers".
By my decription it states the "sums" is $33.
So the vital question remains:
does the month 6 issued summons claim for $33 include
the milk supply for months after month 3 ?
What is the assumption, in the case that the demand letter
and summons both don't specify the period of milk delivery
which is being claimed for:
1. vague - hence invalid ?
2. up to the date when the document was served ?
In which case, it's a fixed amount claimed for an increrasing
3. fixed at the first demand letter and corresponding to the
account of month 3 ?
Q3. Is the concept of cause of action applicable ? If the notice of claim stated in/on the summons or in an attached operative pleading says (in substance if not in these words), "defendant owes plaintiff $__ (whatever the "$__" may be) for goods/services sold, delivered, and accepted" the the notion of "cause of action" that is "applicable" is that whichever of those documents makes such a (or a comparable) allegation alleges a "cause of action" that "defendant owes plaintiff $__ (whatever the "$__" may be) for goods/services sold, delivered, and accepted" -- in other words, it NOTIFIES defendant that that is what plaintiff ALLEGES and CLAIMS.
My lay-man's research for "cause of action" shows:
"The court determined that, generally, a cause of action arises when
the material facts on which it is based have been discovered or ought to
have been discovered by the plaintiff, by the exercise of reasonable
Q4. Am I wrong is saying that the cause of action is NOT after month 3's demand letter ? Yes.
I'm sorry, I posed that as a double negative question.
Are you saying:
the summons of month 6, without any date specifying when
the last charge was made, by default is claiming for milk up to the
date of summons issue, despite the fact that the amount claimed
corresponds to the accounts and demand letter of month 3 ?
And if so, who is going to pay for the milk consumed during months
4, 5, 6 ?
== Chris Glur.
I tried to post you the transcript of the appeal judgment, but it bounced.
This is an international public forum, and the volume of these threads
could be considered as bad netiquette.
A poster refered me to some Yahoo facility, but I don't do cookies, nor
use standard software.
You have rightly accused me of not providing details.
I have everything on line: affidavits, transcripts ..etc., but to
cut/paste/post would newsgroup police out, because of the VOLUME !
09-22-2003, 11:21 AM
Still avowing confusion about the signficance of discrepancies between
allegation and proof of the dates of the parties' pre-lawsuit
agreements and other acts including demands for payment in the context
of a simple services-rendered dispute in which the parties'
relationship has been on-going during and after a customer arrears
collection lawsuit, email@example.com further wrote in pertinent
part on 16 Sept. 2003:
[ For a relationship by which I purchase and am billed for services on an on-going basis each month with an inherent lag between services delivered and accepted and the bills therefor, the creditor creditor sent me a letter in the third month demanding payment of $n which I chose not to pay. During the next two months I continued to accept but not pay for the services in question and so I became indebted during that ensuing period for sums even after crediting portions I disputed in addition to $n. During the fifth month, the creditor's lawyer sent me a demand letter, which, however, sought payment of only $n and yet which I assumed was based on his client's previous letter. I also speculate that the lawyer may not have adequately communicated with one another and also that the creditor's billing department may in some other way have provided incorrect information to the its lawyer about the actual sums the creditor might have claimed due during and after the fifth month if the client had been more careful than it was. I surmise alternatively that someone in the billing department may have credited me with my earlier made security deposit, although no letters from or other documents furnished me by the creditor or its lawyer so say.]
[Absent] something in the letter itself which supports what you say you here "assume" . . . there might be any number of reasons . . .the lawyer wrote this letter [including that he or his client may just have been careless]. Well, if the demand letter from the dairy's lawyer is not grounded on the [creditor's] demand letter (and, yes nothing 'in the letter itself supports' my assumption) then my whole argument is void.
That (that your "whole argument is void") seems to be the gist of what
you've earlier suggested the court ruled in your case about (or was it
more than) a year ago. If so, your (even if slightly conditionally
qualified) "my whole argument is void" recongition appears to be more
than a litte belated.
But the reality is that you have not actually any "argument" as such,
and you continue to avoid actually stating one mostly because, besides
what appears to be self-induced intellectual stubborness, your
preference for vague terms such as "grounded on the . . . [earlier]
letter" or, in earlier postings, "related" to that letter without your
allowing yourself to understand that and how you use "grounded" or
"related" (and like labels) simultaneously in two very different
senses -- namely,
- as in _some_ way triggered by or (in _some_ way)
and yet also
- as "limited to" (or, in some of your earlier postings,
as if "precluded by") whatever was said in the first
Worse, you just presume (albeit in a context including your having
merely ignored both demand letters then defaulted in appearing in and
defending the creditor's lawsuit) that a (anyway: minimal) discrepancy
- the creditor's actual (even if you would argue:
themselves mistaken and also not adequately
explained to you) underlying account records,
- the creditor's and its lawyer's presuit demands,
- sums initially sued for in a later collection lawsuit
necessarily creates, PER SE, some sort of bar against the court, in
deciding whether to exercise its discretion to vacate a default
judgment against you, from making any inquiry about what each of the
litigating parties contends to be the _substantive_ answer, at the
time your said motion was made and submitted to the court, to two
basically simple -- but, with respect to your lawsuit given its actual
procedural posture, quite basic -- questions and to one related less
simple (in part because somewhat law-techincial) third question:
1. By reason of your request for, acceptance of,
but failure to pay as billed for municipal utility services,
how much did you owe the utility/creditor for the period
ending as of the date of entry of the default judgment?
2. In light of your on-going requests for, acceptance
of, but failure to pay amounts the uitlity claimed for
municipal utility services during the pendency of the said
lawsuit through the date of the submission to the court
of your contested motion to rescind that default judg-
ment, what sums may or ought the court take into account
and direct that you pay for this post-judgment period?
3. If the court believes it has the authority lawfully
to consider and make some sort of substantive award
with respect to pre- to post-(default)judgment in-
debtednesses arising out of the very same underlying
transactions between the same parties which resulted
in the lawsuit in the first instance (i.e., your purchase
but refusal to pay for uitlity services) ought (and may)
the court so order summarilly compared withconducting
an evidentiary hearing (maybe even a full-scale trial)
at which witnesses would testify to resolve the parties'
competing contentions about that the sums actually owed
Before just again yet as usual just willy-nilly indulge in your
related preference to debate for its own sake, you will do yourself a
service if constrain yourself to think as if you had not addressed any
aspect of these questons before about the _substantive_ answer in
terms of what you had agreed to pay for the services you purchased to
the extent (if any) affected by rates established by
legislation/regulations governing the particular
customer-with-supplier relationship of the sort of creditor (a public
utility supplier) here actually at issue and, in thinking about these
issues, do basically two things: First, note and understand that
these really are separate questions; and, second, to try to formulate
an answer both based on actual analysis rather than on your usual
formalistic yet much too vague approach to what a "cause of action" in
some sense "is" (and when/how it "accrues") and _also_ answer the
three questions above _substantively_ (thus, with respect to the first
to, giving actual numbers and the _reasoning_, not just conclusory
averrments, how you arrived at them).
In so doing, though, perhaps sigificantly, you do not make any
reference to this issue in your summaries, you were presumably [and in
fact?] also receiving another form of "demand" during the periods in
question other than the two letters to which you've confined your
interest in your posting, i.e., periodic bills from the
But quite apart from whether you were/weren't receiving such bills, it
remains signficant (for this otherwise trivial contretemps) that you
have previously acknowledged that neither of the pre-suit letters (nor
the creditor's bills) to which you've referred were worded in a manner
that admitted or otherwise agreed that the creditor would not seek
more than $n in the lawsuit to which you've referred.
Anyway "relates to" and "grounded in" does not necessarily mean
"limited to" so that (especially if the parties continue their service
sales/purchase relationship) the court is not required to disregard
practical reality (re. which see further comments below how all the
above considerations relate to what you continue to confuse about
"cause of action" and "accrual" notions)..
* * * I think that analysing the infinite alternate possibilities, just causes loss of focus on the core issues ?
But this also is why all your (present) postings/queries about the
issues addressed here remain at best puzzling; for as I have hardly
been the only one to note: the "core issues" for a defendant against
whom a default judgment has been entered and who seeks to set aside
that judgment are usually (and, in your case, most certainly were and
remain) materially different from the sorts of issues on which you
here continue (seemingly: almost exclusively and, if so, unhelpfully)
to focus; in turn, the "core issues" for a defendant in default whose
motion to rescind that judgment has been denied yet also granted in
part and who, eeks to appeal from the ruling deciding that motion
differ in important ways for the "core issues" that that defendant
raised and could have raised in his motion to rescind/vacate in the
first instance; and, finally (as relevant here), the "core issues" for
such a defendant whose said appeal was denied by some
lower/intermediate appellate court who wants to try to appeal further
or to attempt some sort of ancillary/collateral attack also differ
materially from those posed at the earlier stage of the proceedings in
BTW in the area of jurisdiction applicable (south africa) they have lots of mention about "reasonable". I think also w.r.t. assumptions. Doesn't that also apply to legislation in which you are trained ?
BTW: my earlier and also present references to the state of the law in
So. Africa as relevant to your case reflect (apparently: unlike you)
knowledge of what So. African law provides. In addition, both
explicitly and in effect, you've solicited comparative law commentary
for comparable jurisdictions re. which, in earlier exchanges, you and
I have tacitly posited (correctly) that the U.S. and Gt. Britain (with
respect to issues comparable to those raised in/by your lawsuit) to be
A summons is issued in month 6 . . . [with] 'cause of action' claiming $n. The "cause of action" as actually stated was something to the effect, "defendant owes plaintiff $n for goods/ services sold, delivered, and accepted" . . . . [and probably] no more than such an allegation is needed [to state a "cause of action"].. That sounds good. But what I actually want is the DATE of cause of action (which to me is implied by your $n figure), . . .
. . . this is not an unfair question . . .
. . . and secondly (although obvious) WRITTEN acknowledgement that DATE of cause of action cannot MOVE . . . .
. . . in other words, you seem to be asking, is there some date as of
which the "cause of action" becomes (as you've vaguely tried to put
this earlier) "fixed" and, if so, how is that date determined for a
case like yours -- also, not a reasonable question, PROVIDED that you
do not lose sight of both the substantive and procedural summary and
related distinctions above in trying to understand what you here
conflate as if one issue (issues especially important for you since
you use, and emphasize, "DATE" in confused yet also sumultaneously
The "DATE of [the] cause of action" sued upon is the date of the
operative pleading (e.g., in courts where the rules so permit, the
date of the "statement of the claim" sued upon if stated in the
"summons" itself or, as also occurs commonly, as stated in the
operative pleading (e.g., a "complaint" or a "petition") referred to
in and which is required to be served on defendant with the summons.
You confuse that date with "DATE of [the] casue of action" as if the
answer to essentilly this question:
What are the underlying alleged and, even if not
clearly or correctly alleged, actually operative
dates before commencement of the lawsuit
that are relevant to computing how much (if any)
Yous say above that my summary for you of "cause of action" as
actually stated in your lawsuit as something like,
"defendant owes plaintiff $n for goods/services
sold, delivered, and accepted"
"sounds good" but seem not actually to understand what this really
means as applied to the pre-suit letters to which you refer -- i.e.,
that in YOUR lawsuit, plaintiff (at first) did little more than to try
to answer Q.1 as I summarize it above (no more but, also, no less).
In other words, except and to whatever if any extent plaintiff's
operative pleading in the lawsuit explicitly alleged otherwise, the
lawsuit as originally commenced was no more than a claim by plaintiff
that as of the date of the lawsuit's commencement you owed plaintiff
There moreover are a number of also quite well established principles
to implement this (actually quite simple and also basic) conclusion.
(These include, depending on procedural context, rules about
"splitting a cause of action" and of "res judicata" and "collateral
estoppel" and some related [so-called: "equitable"] doctrines [e.g.,
that of "judicial estoppel" - a rule to the effect that a party who
makes allegations of claimed fact and about the legal principles
related thereto said to entitle that party to some form of
court-granted relief who is thereupon awarded that very relief based
on such claims will generally not be permitted later to say (at least
in the context of the lawsuit itself), "I didn't mean and so disregard
what I alleged"].) Thus, if plaintiff were awarded $n or some sum
less than $n, the judgment so directing would, indeed (and in law),
"fix" defendant's indebtedness with respect to the period covered by
the lawsuit at whatever that sum may be (unless the judgment itself is
later vacated or reversed or otherwise modified by the parties
themselves or by the court).
But to say that a _judgement_ "fixes" that sum ($n) as the amount owed
for the period covered by the lawsuit is, again, not the same as
claiming that the court may not in the first instance (i.e., in
determining the lawsuit in chief whether or not by default) or at some
later time (e.g., in determining what if any conditions to impose in
deciding whether to rescind or to modify a default judgment) make a
ruling which answers to two questions summarized above.
Q1. does the month 5 demand[ ]letter for [$n] include the . . . supply for months 4 and/or 5 ? You haven't actually quoted the letter as you posit it here. Therefore, all one may legitimately conclude about the letter is that it was mailed (and, you seem to imply, was dated) in the fifth month and says to the customer, "pay us $[n]".
Q2. does the month 6 issued summons claim . . . include the . . . supply for months after month 3 ?
Unless and to the extent (if at all) that it states otherwise (you do not here say), it "includes" whatever sums and months it says it covers. [Your sentence immediately above is itself vague because t]he letter does not state what "months it says it covers". * * * So the vital question remains: does the month 6 issued summons claim for $[n] include the . . . supply for months after month 3 ?
It is actually you who has difficulty reading and understanding, (in
this respect) not I.
The key point of not just my but also others' earlier comments
addressed to these questions and also of my summary mmediately above
to which you purport respond are, in substance,
on the one hand, that your present postings (in the
form you've chosen to state them) prevent a third
-person from being able (correctly) to say what (if
any) period is _EXPLICITLY_ "include[d]" by the
summons because it is you who has chosen not to
report what "months it says it covers"
on the other hand, that if (as you seem at least to imply)
the summons did not allege what "months . . . it covers"
(explicitly), it would be reasonable to say that it
"covers" the period ending with the commencement of
the lawsuit (as you have said that date is stated on the
Even if/when the latter, HOWEVER, it remains important to distinguish
what the court (and parties) may do if the defendant is served with a
summons and appears and defends in the lawsuit in a timely fashion
from a case in which a defendant is served properly with a summons and
defaults in appearing/defending from, in turn, what sort of showing a
defendant in default (for whatever reason) is required to make to
entitle the defendant to relief from the default judgment in whole or
What [ought] the assumption . . . [be if] the demand letter and summons both don't specify the period of [services rendered] which is being claimed for: 1. vague - hence invalid ?
No. Vague and hence subject to clarification, if the defendant
appears/defends in timely fashion or as might be explained and
evidentially proven by the defendant in default who moves to rescind
or modify a default judgment. Or Vague but not subject to
clarification, if the defendant or the court neglect (or just fail) to
2. up to the date when the document was served ?
You've said that the demand letter, which (you also said) was
optional, did not say that it "covered" sums claimed due by the
creditor "up to the date when th[at] document was served" although
(absent facts proving otherwise) you are right that it would not be
unreasonable to assume that the demand covered the period ending with
the later of whatever (if any) date it states or the date of its
service. But even if such an assumption were reasonable (because the
demand letter did not specify any other date/period), that does not
mean that the creditor may not later sue for a greater sum, if the
demand letter did not admit/agree that the creditor may not do so.
In which case, it's a fixed amount claimed for an increrasing consumption/delivery ?
You begin this series of questions with a hypothesized "what if?"
which, however, requires a distinction to understand (i.e., what if
"letter and [sic] summons both [sic] don't specify" the date[s] that
are "covered" by each/both).
We've already more than adequately discussed that the law-related
effect of the pre-suit _letters_ depends,
First, on what (if anything) the parties' underlying
agreements (or, for municipal utility services,
applicable legislation/regulations) prescribe about
the significance (or not) of such a demand,
Second, on an issue that you've already acknowledged
does not apply to you but which is nonetheless worth
noting in the interest of intellectual completeness, i.e.,
whether the pre-suit demand says that it limits the
relief sought and which will be sued for or, fairly read
in the context of all the relevant facts, warrants applying
some sort of "laches" or "estoppel" principle to impose on
the demand some sort of preclusive effect.
But what you have _not_ (coherently) said (much less: persuasively
argued) is that either of the pre-suit demands you here hypothesize
(and which in your lawsuit you've said were actually made) creates or
constiutes or even affects the _actual_ underlying "cause of action"
sued upon -- i.e., that in the period before and, absent a statement
of dates covered in the summons and its statement of claim or other
operative pleading up to the later of whatever (if any) date it states
or the commencement of the lawsuit, defendant owed plaintiff $n by
reason of services sold to and accepted by defendant but for which
defendant has not paid.
The "splitting a cause of action" principle referred to above is a way
to summarize that, generally, a plaintiff who might have an otherwise
good faith basis to claim that defendant owes $[n+m] but who
unilaterally opts (even if carelessly) to sue for $[n] will generally
be deemed to have waived its claim for the "+m" portion of that
underlying claim if the party obtains a default judgment for $[n], and
the other principles referred to in this context above summarize
corrolaries, that the grant of a judgment awarding a sum of money
generally will preclude relitigation of claims that plaintiff aised
and, very often, also claims that could have been raised.
Note, however, that in the actual lawsuit to which you refer it was
you, as debtor/defendant, who moved to "rescind" the default judgment
and, in so doing, in effect invited the court to revisit the
questions, "How much (if anything) did you owe plaintiff before the
lawsuit was commenced?" and "How much (if anything) did you owe
plaintiff since the lawsuit was commenced and a default judgment
granted?" Further, you made this invitation quite explicit by joining
issue with plaintiff about what sums had become due from you after the
default judgment by your choosing to submit to the court, in (puative)
support of your motion to rescind/modify, a detailed spreadsheet
further (attempted by you to be) explained by your related submissions
addressed to that issue.
3. fixed at the first demand letter and corresponding to the account of month 3 ?
Your hypothetically stated facts make this a moot question, since you
seem to be positing that the lawsuit was brought to recover the same
sum as stated in the lawyer's pre-suit demand.
But, again: unless and, if so, to the extent that the operative
pleading in the lawsuit stated otherwise, the period "covered" by that
lawsuit, for a services-rendered lawsuit, generally would be deemed
for the period ending as of the date of the pleading itself or
commencement of the lawsuit (depending how the pleading is worded) and
the amount awarded, including if by way of a default judgment, would
"fix" the amount owed (i.e., would be the "res" that has been
"[a]judicat[ed]") unless/until that judgment were later vacated or
modified by the judgment granting court, if it had the
jurisdiction-specific authority to do so (as the court to which you've
referred had), or on appeal.
. . . Is the concept of cause of action applicable ? If the notice of claim stated in/on the summons or in an attached operative pleading says . . . "defendant owes plaintiff $__ . . . for . . . services sold, delivered, and accepted" then the notion of "cause of action" that is "applicable" is that whichever of those documents makes such a (or a comparable) allegation alleges a "cause of action" that "defendant owes plaintiff $__ . . . for . . . services sold, delivered, and accepted" -- in other words, it NOTIFIES defendant that that is what plaintiff ALLEGES and CLAIMS. ---[snip]-- My lay-man's research for "cause of action" shows: "The court determined that, generally, a cause of action arises when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff, by the exercise of reasonable diligence."
I've already told you (as have others), correctly, that the notion of
"cause of action" most helpful to you is (here in summary) no more
facts alleged in the operative pleading which if
proved or admitted by the defendant would
induce a court to grant all or at least some
material part of the relief the pleader alleges
and that you relatedly have _not_ stated _any_ facts (whether in your
present "hypothetically" posited scenario or about your lawsuit as it
actually was brought) -- including _not_ about the signficance of the
pre-suit demands to which you've referred -- which requires adding any
"except,that..."s or other "yes,but..."s because of some special rules
of pleading and proof that apply to some kinds/categories of "causes
of action" (e.g., and as previously noted, those to recover for
alleged "fraud" or for "libel" or some special legislatively-created
What your "lay-man's" summary immediately above refers to is not "for
'cause of action'" but, rather for one commonly applied test for when
a "cause of action" is said to "accrue" (i.e., to become suable),
which, in turn, is an issue mostly having to do with
statute-of-limitations issues (when after the occurrence of the
underlying facts is it too late to sue?) and (but only very
occasonally) with whether any "wrong" (that is properly/lawfully
suable) has occurred at all (in other words, whether there really is a
jural controversy that is ripe for judicial intervention).
For the purposes both of your here hypothesized variation on your
real-life lawsuit and for that lawsuit itself, the "cause of action"
sued upon (again: no more than that some alleged monetary amount was
owed to the creditor by reason of services sold and delivered and
accepted but not paid for as agreed though either some stated date or,
at least, the date of commencement of the lawsuit) "accrued" whenever
it was that the underlying utility sales/purchase agreement or the
applicable legislation/regulation said it accrued. -- presumably
(you've implied) some stated number of days after the delivery to you
of a bill for services previously rendered to and accepted by you).
In other words, it typically is the case (and you seem earlier to have
said that, for you, it is the case) that a services seller and the
purchaser agree that (subject to whatever defenses thereto the
purchaser may have if the purchaser acts in timely and otherwise
effective fashion to preserve/assert such defenses) the "cause of
action" for sums due "accrues" when the customer has failed to pay the
bill rendered within whatever period has been agreed (or, if no
explicit period was stated/agreed) within a "reasonable" time after
rendering of a bill (except, of course, for mutually agreed
pay-in-advance or "C.O.D." transactions).
If there were statute-of-limitatons issues relevant to you (though you
have never in any of your postings//queries said that there were), it
could become relevant (maybe even important) to focus on the, "When
did the 'cause of action' in issue 'accrue'?" question.
But (what you seem to have said) the fact remains that, in/for your
case, the plaintiff's lawsuit said (in substance if not in these exact
words), "as of the date of this lawsuit's commencement, defendant owes
$n" and (in part because you did not appear/defendant in timely
fashion) a judgment (on default) was rendered against you in the
amount of $n plus what you do not controvert were
legislatively/rule-prescribed costs/disbursements of the lawsuit
One of your (actually quite basic) confusions in this respect remains
that that you consistently fail to distinguish
what is required in the first instance to _allege_
a "cause of action" which -- IF later proven or if
later ADMITTED -- would entitle the pleader to
the facts as alleged (here: that the defendant
had agreed to pay $n for services he purchased)
and from whether the assertedly governing
principles of law (e.g., that a purchaser of utility
services is required to pay for those services
when such payment is due at the rates and by the
times established by contract or by applicable
legislation/regulation) are, as the case may be,
As further signifcant for you, in particular, your related (yet in
many resepects more important) failure of understanding has to do with
the different _procedural_ requirement which flow from the "if proven"
and also "if admitted" qualification noted above -- namely, that (as
applied to you) one way for a defendant (in effect) to "admit"
plaintiff's allegations (and, thereby, to moot the 'if [independently]
proven" qualification) is to default in the lawsuit, since a "default"
is, essentially by definition, deemed to be the functional equivalent
of an admission at least for the purposes of the lawsuit itself.
Granted, too, that there is in this latter connection an important
distinction between a default which was caused solely/entirely by
plaintiff's act (e.g., because plaintiff directed or at least tacitly
accepted then relied on) a false statement by the process server that
the summons was served upon defendant even though defendant was not,
in fact, served with process and did not even know (and because of
such complete non-service could not reasonably have known) of the
litigation before delivery to defendant of a default judgment compared
with a case in which the defendant chose to default despite service of
the summons (even if by some arguably law-defective method) resulting
in or defendant's otherwise actually being aware that plaintiff had
filed and was representing to the court (whether or not correctly or
even deliberatly falsely) that there was a law-valid basis for the
court to enter a judgment against defendant.
But however a default judgment has been obtained, you (at least: now)
well know the standard for whether the court in your country (as in
many others) ought/will grant relief from that default -- namely (as
relevant here) that (besides the need for the defendant to establish
in/by his motion to rescind/vacate that his default was not deliberate
and ought be excused) what the answer to the question above is about
whether (or, anyway, to what extent) he owes the sum sued for.
And, to be sure, one option for a defendant in default who addresses
and attempts to answer that first question, in his role as movant, is
to prove and explain to the court _why_ the discrepancy (if and to the
extent there is such) between/among pre-suit demands for payment and
the sum alleged as past due and owed in the summons or complaint is
_significant_ in fact.
But again in this connection, a mere discrepancy, without more, does
not tell one anything of signficance (and yet, in your case, you
either acknowledge there is not any "more" because you do not claim
that either pre-suit letter constiuted and admission or agreement).
Even so, you would be also be correct if you were to note that to the
extent that a purchaser of goods or services (whether or not pursuant
to an on-going services/account-rendered basis) contends in good faith
that and also proves that there are material factual issues which
require a trial to determine some combination of whether the
creditor's records are in disarray, of whether the creditor is
charging for sums not agreed or has in some other way made
law-improper charges (e.g., interest at a rate not prescribed by the
parties' underlying agreement or by otherwise applicable law), or the
like, it ought be open to the debtor to contest those charges (unless,
as also earlier correctly noted, such a contest is itself barred by
some sort of agreed or legislatively-prescribed "account stated"
provision or by an applicable statute of limitations, or the like).
These are not difficult concepts to understand.
Are you saying: the summons of month 6, without any date specifying when the last charge was made, by default is claiming for [services allegedly rendered and for which defendant agreed to pay] up to the date of summons issue, . . . .
[Is this so] despite the fact that the amount claimed [is not greater then] the accounts and demand letter of month 3 ?
The answer will (importantly) depend on when the defendant asks and
when and who the defedant seeks to litigate claims with respect to
this question. F'rinstance, some defendants might choose for tactical
reasons to default, e.g., if the defendant believes that his
appearing in the lawsuit and trying to defend might result in
informing a plaintiff was mistaken by suing for a sum less than that
actually owed compared with defendant making a calculated
cost-v.-benefit (self)estimate that a judgment against him on default
(even if perhaps for somewhat more than what he might owe) for the
amount sued for would be comparatively less onerous to him than trying
to litigate on the merits.
Contrast a case in which a defendant does timely appear and answer and
in which, at some comparatively early stage of the lawsuit before
trial, the plaintiff realizes plaintiff made a calculation or other
like error and ought have sued for more than originally sued for
whereupon (if defendant does not agree to allow plaintiff to amend its
lawsuit) plaintiff moves for the court's permission to amend to
correct, including by amplifying/increasing, the relief sued for.
In ruling whether to grant such a motion, the court will ask, above
all, whether the claim as newly attempted to be amended/asserted is
time-barred by reason of some contractual provision or by some
legislatively imposed provision (e.g., a "statute of limitations"
applicable to the case) and also whether what was earlier alleged by
plaintiff in light of the proceedings so far had in the lawsuit make
appropriate applying equitable principles (e.g., of "estoppel") or
principles of law (e.g., by reason of earlier admissions by the
pleader that no more than the amount first sued for was owed) to
warrant a denial.
And if so, who is going to pay for the [services] consumed during months 4, 5, 6 ?
As a general matter, each default in paying despite some agreed
pay-as-billed amount constitutes a separate "cause of action" which,
for on-going services rendered relationships, will be deemed to
aggregate. And just as a defendant who chooses to default will be
deemed to have admitted the claims against him, so, too, might a
plaintiff waive otherwise assertable claims.
In the here hypothesized lawsuit, if defendant has purchased and
agreed but failed to pay for services over a period of many months
before commencement of the lawsuit and if the plaintiff, e.g., because
of carelessness/disarray of its records/bookkeeping, sues for only a
portion of the total amount it would have been able to prove if its
records were not carelessly maintained, plaintiff generally will be
precluded from thereafter suing for such sums due before commencement
of the lawsuit.
There might be some case-specific qualifications to this "generally
will be precluded" effect -- if, e.g., the parties' underlying
agreement anticipated and provided for some form "splitting a cause of
action" behavior by plaintiff or if defendant says/does other things
to waive his right to object that plaintiff may not "split a cause of
action" or avoid the effects (post judgment) of "res judicata" or like
principles -- but (in the scenario as you here posit it) the person
who is "going to pay for the . . . [sums otherwise owed by defendant
for] 4, 5, 6" will be plaintiff, if plaintiff waived the right to sue
for those months and if defendant defaults in the lawsuit and judment
is rendered against defendant for the sum sued for (plus allowable
costs/disbursements/interests) and if that judgment is not later
reversed or vacated.
You ought not expect a further response by me to postings in/by which
you just repeat the issues/questions posed and addressed above.
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