Palpar, Inc. v. Thayer

DOOLING, J.

Plaintiff recovered judgment against defendant upon a book account for rock sold and delivered, from which judgment defendant appeals. Appellant designated certain exhibits to be included in the clerk’s transcript pursuant to rule 5 (a), Rules on Appeal. He also requested a partial reporter’s transcript without stating the points to be raised by him on appeal as required by rule 4 (b), Rules on Appeal. When respondent pointed this out in the lower court and requested a complete reporter’s transcript appellant moved to strike the reporter’s transcript and this motion was granted. The appeal is therefore presented to us on the clerk’s transcript alone.

Another action involving the same parties was before us on appeal in

Palpar, Inc.

v.

Thayer,

82 Cal.App.2d 578 [186 P.2d 748], In that case plaintiff as assignee of one Morton was seeking the partition of a tractor and an accounting of the profits from the tractor’s operation. In the proceeding now on appeal the plaintiff is also suing as assignee of Morton. Appellant pleaded another action pending and res judicata. On appeal he also asserts a splitting of causes of action. We find nothing in any of these points. It is too patent for need of elaboration that a cause of action for rock sold is not the same as a cause of action for a share of the profits from the operation of a tractor. A party may bring separate suits on separate causes of action even if joinder is allowed. (1 Cal.Jur. 346;

Lynch

v.

Kemp,

4 Cal.2d 440 [49 P.2d 817].) The question whether or not the two causes of

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action were included in one assignment from Morton is likewise immaterial, so long as they were both assigned either by one or separate assignments which is undisputed.

Appellant also asserts that the evidence does not support the finding of a book account. A single ledger page is included in the exhibits in the clerk’s transcript. On its face it supports the judgment. Appellant argues that a single page is not a book of account. There is no showing that this page was not taken from a complete ledger for convenience of introducing it in evidence.