Cromer v. Strieby

GRIFFIN, Acting P. J.

This is an action by plaintiff and respondent against defendant and appellant on an open book account. From an adverse judgment defendant appeals.

On October 28, 1941, the respondent filed a complaint consisting of one cause of action on an open book account alleging that defendant was indebted to him in the sum of $700; that $283.99 was paid thereon; and that there is a balance due in the sum of $416.77 which has not been paid.

On November 10, 1941, the appellant demanded from the respondent a bill of particulars which was furnished on December 15, 1941. On December 6, 1941, appellant filed his answer denying the allegations of the complaint. The trial of the matter was had on January 14, 1942. Judgment was rendered against appellant in the sum of $416.07. Respondent Cromer was called as a witness. Appellant then objected to the introduction of any evidence on the ground that a bill of particulars had not been furnished, after demand, within the time prescribed by law. The objection was overruled. Cromer then testified and the court found that he had been in the business of cattle feeding for a period of ten years or more; that the method employed by him in carrying on his business was to purchase feed from farmers in. Imperial Valley and buy cattle from other states, shipping the cattle in and feeding them; that this food, in the

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main, was bought several months before it was to be used, and the method frequently used was for the respondent to advance money to a farmer or grower, with which the farmer or grower was to plant and raise the feed; that these advances were made in different sums, as necessity arose; that when the food was grown respondent would pasture his cattle thereon and would credit to the account of the grower or farmer the price of the pasturage until the credit equalled the charges; then respondent would pay the balance, if any, in cash.

In conformity with this verbal agreement respondent testified that he delivered to appellant three checks, one in the sum of $400, dated April 7, 1938, one in the sum of $200, dated April 26, 1938, and one in the sum of $100, dated May 1, 1938; that two credits were made against the charge, one in the sum of $272.06, paid to him by one T. M. Bates, and another credit for $11.93, also turned in to him by Mr. Bates for the account; that as to the nature and method of carrying on his business he testified that his books were kept on all of his feeding business together; that after he had given Strieby the $700 he found that Strieby was growing no feed on the place for which the advance had been made; and he made several demands on Strieby for the pasturage for which he had advanced the money; that had Strieby grown the feed on the place on which the original deal was made he would have “pastured off” according to agreement.