Robin v. Smith

FOX, J.

Plaintiffs, as coexeeutriees of the Estate of Louis Minick, sued defendant on a book account.

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Defendant appeals from an adverse judgment. The sole question is whether the evidence established the existence of a book account.

Decedent was engaged in the dairy and ice cream business. He was the sole proprietor of Minick’s Dairy Farm. It is the books of this enterprise that are here involved.

Plaintiffs’ amended complaint alleges that within four years defendant became indebted to the deceased Louis Minick in the sum of $5,766.78 upon a book account, reflecting such balance as owing to decedent by reason of money loaned to defendant.

Plaintiffs introduced four exhibits which purportedly comprise the asserted book account. Exhibit 1 consists of pages 14 through 16 inclusive taken from the books of decedent’s company. They are collectively captioned “Record of Disbursements for August 1949” and contain over sixty entries relating to sums given by cheek to various individuals and corporations. Among these items is a cheek drawn to defendant’s order on August 23, 1949, for $1,660.81. No other data with reference to this disbursement appears except that it was chargeable to decedent’s personal account. Several other items also are thus charged, including a cheek made out to the Collector of Internal Revenue. Other disbursements recorded include checks to the Southern California Edison Company, Linen Service Company, H. L. Byram, Tax Collector of Los Angeles County, etc. Plaintiffs’ Exhibit 2 is a sheet from the company books, one side of which is entitled “Record of Checks Drawn On-month of January, 1950 No. 1.” This discloses a check drawn to defendant’s order, in the amount of $5,000, chargeable also to decedent’s

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personal account. The rest of the sheet lists about 30 other checks drawn in favor of miscellaneous payees from January through March of 1950, including one to the Collector of Internal Revenue.

Exhibits 3 and 4 are general ledger sheets entitled “Louis Minick—Investment.” Exhibit 3 contains 24 entries covering the year 1949. The entry for August 31st shows a total of $9,621.42 listed under the “charges” column. This total includes the check of August 23, 1949, for $1,660.81 in favor of defendant, and among other items, the check issued on August 11, 1949, to the Collector of Internal Revenue to apply on Minick’s personal income taxes. Exhibit 4 simply records a charge of $5,000 against Minick’s investment account for January, 1950, and apparently represents the $5,000 check issued to defendant although his name does not appear thereon. This item is but one notation in a column of figures representing various transactions of an undisclosed nature with other parties.