Doyle v. McPherson

California Court of Appeal Dec 13, 1939 No. Civ. 10892Published

Before: Nourse

AI Brief

AI-generated · verify before citing

Holding. The court held that the plaintiffs were entitled to judgment notwithstanding the verdict on an account stated, as the defendant's failure to object to monthly statements constituted an admission of the account, and the action was not barred by the statute of limitations.

Issues

Whether the plaintiffs were required to plead an assignment of the account in their complaint.
Whether the evidence was sufficient to prove an account stated.
Whether the action was barred by the statute of limitations.
Whether the trial court erred in granting judgment notwithstanding the verdict without a specific motion for a directed verdict on the counterclaim.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The implied acquiescence arising from the failure to object within a reasonable time is all the evidence necessary to prove his admission that the account was stated truly.”

“Upon this current account the four-year statute would commence to run from the time of the last item, and the cause of action is therefore within time.”

“A counterclaim is but a matter of defense raised by answer (sec. 437, Code Civ. Proc.), and we are cited to no authority holding that it must be specially mentioned in the motion for a directed verdict made by plaintiff on his complaint.”

NOURSE, P. J.

Plaintiffs, partners doing business under the name of Doyle-Feeney Co., brought the present action against defendant, stating two causes of action—the first upon an open and current book account and the second upon an account stated—to recover the balance due upon a brokerage account. Defendant pleaded the statute of limitations and counterclaimed for damages allegedly suffered by reason of plaintiffs’ negligence in the sale of collateral security, and

[83]

pleaded a misjoinder of parties plaintiff. The cause was tried with a jury and the verdict was in favor of plaintiffs for $1500. Thereupon plaintiffs moved for judgment notwithstanding the verdict. Said motion was granted, and judgment entered in favor of plaintiffs for the amount prayed for, $2,319.20. Defendant appeals from the judgment in favor of plaintiffs and from the order denying defendant’s motion for a new trial.

Defendant opened the account with Warded, Taylor, Dunn & Co. in November, 1927. This partnership was succeeded by Bacon, Warded & Co., Warded, Doyle & Co., and DoyleFeeney Co. Bach firm was a general partnership engaged in the brokerage business, and each succeeded to the assets and liabilities of its predecessor by purchase and assignment. Defendant terminated his stock transactions in October, 1930, when Bacon, Warded & Co. sold four bonds which had been held by them as collateral security. These securities, which were sold at a loss, are the basis of the counterclaim that they were held too long after defendant ordered a sale. After this sale no transactions occurred other than the payment of $500 by defendant in 1931 and two other payments of $100 each. Interest was regularly charged to the account upon the balance due. The action was not commenced until June 8,1937. The last item in the account was a credit of 70 cents resulting from the sale of a fractional share.

The appedant states seven questions which he urges as grounds for reversal. The first is whether the respondents were not required to both plead and prove an assignment of the claim from their predecessors. The pleading is in the form of the common count—upon an open current book account, and upon an account stated. The sufficiency of the pleading is not open to question.

(Pike

Doyle v. McPherson

AI Brief

NOURSE, P. J.

More from California Court of Appeal

Related research

AI Brief