Ahlbin v. Crescent Commercial Corp.

MUSSELL, J.

Plaintiffs appeal from a judgment that they take nothing by reason of their amended complaint and awarding cross-complainants damages in the sum of $1,892.50.

Three causes of action are set up in the amended complaint, in the first of which it is alleged that defendants became indebted to plaintiffs upon a book account in the sum of $2,250 for money had and received, which sum defendants agreed in writing to pay to plaintiffs; that the demand for payment

[647]

was refused and the whole amount is owing and unpaid. In the second cause of action it is alleged that there was an account stated between the parties whereby it was determined that defendants were indebted to plaintiffs in the sum of $1,450, and in the third cause of action an account stated was alleged for the sum of $931.24.

Defendant answered the amended complaint and demanded a bill of particulars. Plaintiffs failed to furnish such a bill or to furnish a copy of the account sued upon. The trial court, for that reason, sustained objection to evidence offered in support of the account stated and rendered judgment that plaintiffs take nothing by reason of their amended complaint. In this connection plaintiffs contend that it was not necessary that they comply with the demand for a bill of particulars insofar as the second and third causes of action were concerned.

Section 454 of the Code of Civil Procedure, as far as is here applicable, is as follows:

“It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence ther of. ’ ’

In

Auzerais

v.

Naglee,

74 Cal. 60 [15 P. 371], it was held that in an action on an account stated, it is not necessary to prove the account or any of its items, but the proof in such a case is directed to the fact that the parties have accounted together and agreed upon the balance due; that an account stated is an agreement between both parties that all the items are true and that the balance found due upon a stated account is principal; it cannot be reexamined (except for fraud or mistake) to ascertain the items or their character; that the term “stated account” is but an expression to convey the idea of a contract, having an account for its consideration, and is no more an account than is a promissory note, or other contract, having a like consideration for its support.