Bailey v. Hoffman

STURTEVANT, J.

The plaintiff commenced an action against the defendants to recover on a book account. The defendants filed a joint answer. The action was tried before the court sitting without a jury. The court made findings of fact in favor of the plaintiff, and from a judgment entered thereon the defendants have appealed and have brought up a bill of exceptions which, on its face, appears to be a digest only of the proceedings below.

The plaintiff makes a preliminary objection to the hearing of the appeal. He calls attention to the fact that more than sixty days elapsed between 'the date the judgment was entered and the date of the filing of the notice of appeal. The defendants reply that , the judgment was entered July 25, 1928, that on July 30, 1928, they served a notice of intention to move for a new trial, that afterward they made their motion and that the motion was denied September 17, 1928. Thereupon they show that within thirty days they filed their notice of appeal. Under

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these facts their notice of appeal was filed in due time. (Code Civ. Proc., sec. 939.)

The first point made by the defendants is that the court erred in receiving in evidence the plaintiff’s alleged book account. From the bill of exceptions it appears that the plaintiff produced a certain book kept by him and in. which appeared the said account. The heading is “Dr. Hoffman job at Emerald Lake,” then follows the year, 1924. Below in chronological order were entered charges for labor and materials January 7th to February 12th, both dates inclusive. No entries are made on the credit side. At the end the materials are summarized at $161.35, labor at $478.75, and freight at $4.75. Specifying their objections to the purported account, the defendants say that it does not show against whom the charges are made, it does not show in whose favor the charges are made, and that it is not a detailed statement in the nature of debit and credit arising out of contract or some fiduciary relation, and they cite and rely on

Wright

v.

Loaiza,

177 Cal. 605 [171 Pac. 311]. The authority cited is not applicable to the facts. The statements or entries are made in detail. They are all debits. No credit appears and none was claimed. The book was produced from the possession of the plaintiff and there was nothing in the evidence showing or tending to show that he kept any accounts in favor of anybody but himself. Therefore it cannot be said that there was not some evidence showing that the account was in his favor. The account does not show expressly that it was against these defendants. But, it will not be controverted that the parties were entitled to explain the account by the introduction of evidence regarding the circumstances under which it was made and the matter to which it related. (Civ. Code, sec. 1647.) Nothing to the contrary appearing in support of the judgment we are bound to assume that evidence was introduced showing that these defendants occupied property at Emerald Lake, that there were not other Hoffmans occupying property there, or if there were, that the other Hoffmans were not known as “Dr. Hoffman.” Following the same line of reasoning there are other facts, which we are likewise entitled to assume, all of which go to establish the identity of the debtor. Under these circumstances we think it cannot be