Head v. Logan

TUTTLE, J.

This action was brought by plaintiffs to recover the sum of $1120.97. In a second cause of action plaintiffs sue to recover the sum of $52.82 alleged to be due them as assignees of S. H. Gillette, and in a third cause of action they seek to recover the sum of $94.46 due them as assignees of W. G. Grant. All causes of action are predicated upon an open book account. The court found in favor of plaintiffs upon all counts, and judgment was rendered as follows: Upon the first count, $1101.32; upon the second, $48.64, and upon the third, $93.17. Defendant appeals from the judgment.

Plaintiffs, during the years 1934 and 1935, were engaged in general mercantile business at Happy Camp, Siskiyou County. Defendant, during that time, was conducting mining operations in the vicinity. The evidence shows that various and numerous articles were purchased from plaintiffs by defendant, and that plaintiffs at times advanced cash to defendant. Payments were made upon the account on many occasions. The first contention made by appellant is that the evidence is insufficient to support the findings. An examination of the record discloses that there is ample evidence to justify the finding, and the point is without merit.

It is next urged that the trial court erred in admitting in evidence items which were not contained in a bill of particulars filed by plaintiffs. (Sec. 454, Code Civ. Proc.) As the bill of particulars was not admitted in evidence, nor is it in the record, and consequently is not before us, we must conclude in support of the judgment that the items men

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tioned were included in the bill of particulars. Furthermore, we can see no prejudice resulting from the admission of such evidence, assuming that the items were not included in the bill. The questions objected to by appellant related to payments made on the account by appellant. On one occasion appellant said he did not know, and would have to look it up. The question, therefore, remained unanswered. On another occasion Mrs. Head, bookkeeper for respondent, testified, over the objection of appellant, as to a payment of $100 on account by appellant. These are the only instances mentioned by appellant in connection with the point raised. We note that the trial judge, in overruling appellant’s objection to testimony covering credits upon the account, observed that he had examined the demand made by appellant for a bill of particulars, and that such demand covered only items