Fresno Credit Bureau v. Batteate

MUSSELL, J.

The instant action, filed July 26, 1949, was brought by plaintiff as assignee of Soil Mineral Corporation to recover the purchase price of. 72% tons of soil mineral sold to defendant and delivered to him at his ranch at Farmington. It was alleged in the complaint “that within the four years last past, defendant became indebted to the Soil Mineral Corporation upon an open book account for goods, wares and merchandise sold at the special instance and request of defendant in the sum of $4,060.00. That although requested, defendant has failed, refused and neglected to pay said sum or any part thereof, and the whole thereof is due, owing and unpaid.”

The trial court rendered judgment for plaintiff and defendant appeals, contending that the evidence is insufficient to support the finding that there was an open book account. The argument advanced is that the proof was of an express contract relating to a single, isolated transaction and that the proof of such an express contract will not support findings of an open book account. This argument is without merit.

There is substantial evidence that in July, 1948, a salesman and officer of the Soil Mineral Corporation called upon the defendant at his ranch for the purpose of selling a quantity of soil minerals; that defendant ordered 72% tons of the product for application to his crops and agreed to pay the sum of $4,060 therefor; that defendant promised a substantial payment on the purchase price within 30 days and regular installment payments thereafter; that the original purchase order indicated that the defendant agreed to pay $1,000 on the following day and the balance monthly; that upon receipt by the corporation of the order, its secretary entered the transaction upon the books of the corporation on a ledger sheet carrying the defendant’s name, in which the defendant was charged with the merchandise delivered in the sum of

$4,060;

that the materials were delivered as ordered and that the defendant failed to pay the purchase price or any part thereof.

The evidence was sufficient to support a judgment upon the cause of action based on an open book account or upon an implied contract and, as was said in

Hansen

v.

Burford,

212 Cal. 100, 107 [297 P. 908]:

“The distinction, as a matter of pleading, between a book