Oakland California Towel Co. v. Zanes

NOURSE, P. J.

Plaintiff sued for breach of contract arising from defendant’s failure to return linen supplied to defendant under a written contract. Claim was also made for attorney’s fees chargeable to defendant under the express terms of the contract. Judgment went to plaintiff for $2,018.01, and attorney’s fees assessed at $225.

The appeal presents the single issue whether the tags prepared by plaintiff showing the delivery and return of linen supplied by plaintiff were admissible in evidence, or more specifically whether, on the evidence depicting the method of preparation, the use and acceptance of the records throughout the business transactions of the parties, the trial court committed error in receiving them in evidence. These tags, which were admitted over the objection of defendant, show the exact number of the several pieces of linen supplied to defendant daily and the exact number returned. The shortage was estimated on the agreed value of the pieces not returned.

Plaintiff was engaged in the business of supplying laundered towels, sheets and similar articles to hotels, rooming houses and restaurants. Defendant was engaged in the business of operating a restaurant and rooming houses. Under the terms of three written contracts plaintiff supplied the clean linen to defendant and on each delivery took back the soiled linen. The practice over the period of three years of the life of the contracts was this: tags, or tickets, were prepared in quadruplicate in plaintiff’s office; these itemized the several pieces of clean linen to be delivered to the customer and the pieces of soiled linen returned by him. Each delivery tag was double cheeked by plaintiff and a pink carbon copy was given to the driver who exhibited it to the customer on delivery of the linen. Sometimes this tag was signed by the customer, but when no one was present to sign, the copy was returned by the driver to plaintiff’s files; a rose-colored carbon copy of the original tag was left with the customer on each delivery of clean linen. The written contracts contained a provision reading: “Lessor’s delivery tags shall be deemed correct as to the number of articles delivered unless objection in writing is made by Lessee within ten days after delivery of

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articles.” There was no evidence that any such objection was made by defendant. The compilation of these receipts or tags disclosed the shortages in the amount returned. The value was fixed, and on this there is no controversy.