Costerisan v. DeLong

STONE, J.

Plaintiffs appeal from an adverse judgment in an action to recover a balance due for a number of deliveries of hay. The complaint alleges two common count causes of action, an open book account and an account stated.

Plaintiffs delivered hay to a dairy farm operated by defendants Jake and Lorena Verboon. A. Morice DeLong, originally named as a defendant, promised to pay plaintiffs for hay delivered to the Verboons. Before the action came to trial, DeLong died, and the executor of his will was substi

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tuted in Ms place. The Verboons defaulted, and the action proceeded against DeLong.

Although plaintiffs argue they proved an account stated, this is a make-weight argument wholly unsupported by the record. There is no evidence that plaintiffs ever delivered a statement to DeLong reflecting a balance due, or that plaintiffs and DeLong ever agreed upon a balance due, or that a balance was struck and an account stated in any other manner.

The critical question raised is whether the balance owed plaintiffs is evidenced by an oral agreement and barred by the two-year statute of limitations, or whether plaintiffs proved a book account within the four-year statute.

Mrs. Lowell Costerisan, plaintiffs' bookkeeper, testified, without contradiction, that the controversial exhibit No. 1 which plaintiffs contend was a book account within the purview of Code of Civil Procedure section 337a, was part of the regular bookkeeping system maintained by plaintiffs in the following manner: A manila, letter-size folder or file was set up for each customer purchasing hay. If the account ran for a longer period than a year a new file was set up each year. All data referring to the account of the particular customer, and only data referring to his account, were placed therein. The customers’ folders were kept in alphabetical order in a file in plaintiffs ’ office. Bach transaction was carried on a separate ledger sheet and upon the sheet Mrs. Costerisan entered the date of delivery, the quantity of hay delivered, the weight of the load, the price of the hay and the total amount due for the particular delivery. To the ledger sheet was attached, by a staple, the weighmaster's ticket certifying the weight of the hay and the date it was weighed. Although the ledger sheets with the attached data were kept in the customer’s folder, they were not attached to the folder itself. Written on the “tab” of the manila folder containing the ledger sheets is the title “Verboon hay” and the outside or front cover bears the name “DeLong. ” On the inside of the cover there appears the name, “A. M. DeLong,” together with his address.