Tsarnas v. Bailey

KAUFMAN, P. J.

This is an appeal from a judgment entered on December 30, 1960, pursuant to a remand from this court in

Tsarnas

v.

Bailey, No. 18545,

179 Cal.App.2d 332 [3 Cal.Rptr. 629], decreeing that $8,168 was due to the plaintiffs. The original action was on a common count and the defendant answered and cross-complained. The trial resulted in a judgment for the plaintiffs in the amount of $11,553.20. On the prior appeal to this court (Division One), the judgment against the defendant on the cross-complaint and counterclaim was affirmed and the judgment on the complaint in favor of the plaintiffs was reversed and remanded “for the sole purpose of ascertaining the amount due to plaintiffs.” As the facts are stated in the prior opinion,

supra,

at pages 334 and 335, and are not in dispute, we need not restate them here.

In stating the reasons for the remand and outlining the procedure to be followed, this court said at pages 340 and 341: “We believe that in order to arrive at a figure which will reflect the true account, it probably will be necessary for an accountant to be appointed by the court, for surely a busy trial judge should not be compelled to review a mass of poorly kept accounts. The judge already has had to decide upon 726 pages of testimony, with about five to ten new facts on each page. If the discrepancies were minor, we would let the matter stand, but they appear to be quite substantial, and we have no alternate but to reverse the judgment with direction to the trial court to try the subject of the account between the parties.

“In order to make plain what is to stand and what is to be done, we list the following: (1) the finding and conclusion that defendant breached the contract, stand, (2) the finding and conclusion that damages were not sustained by cross-complainant for the breaches set forth in the cross-complaint, and the judgment on the cross-complaint, stand, (3) the cause is remanded for the purpose of ascertaining the proper amount due to plaintiffs, and, because the burden of proof rests upon plaintiffs to show that amount, the lack of tallies, etc., although mentioned in the cross-complaint, may, of course, be material in the defense of plaintiffs’ claim.”

On this appeal, defendant contends that (1) the trial court failed to follow the above-quoted directives of the court