Ough v. Ansonia Oil Co.

California Court of Appeal Jul 11, 1929 No. Docket No. 6767.Published

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Holding. The court held that the plaintiff's claims for services and materials were barred by the statute of limitations, that the correspondence relied upon did not constitute an account stated, and that the ledger evidence failed to establish a mutual open and current account with a balance due.

Issues

Whether the plaintiff's claims for services and materials were barred by the statute of limitations.
Whether the correspondence from the defendant constituted an account stated.
Whether the ledger evidence established a mutual open and current account with a balance due.

Disposition. reversed

Quotations verified verbatim against the opinion

“To recover upon an open book account it must show a balance due.”

THE COURT.

In this action plaintiff seeks to recover against the two defendant corporations for services alleged to have been rendered and materials furnished in connection with the drilling of certain oil-wells and the cleaning out of a certain water well at Petaluma, California, during the year 1921.

A written contract was entered. into between plaintiff and defendants on March 9, 1921, wherein it is provided that plaintiff is to place on the ground a complete Star drilling outfit capable of drilling at least 1200 feet, and as soon as the outfit is on the ground, to set it up with all possible speed consistent with careful work and commence to drill for oil; plaintiff to receive $35 per day for each working day of eight hours so long as the work shall continue, such, payments to be made at the end of each period of ten days; the company to furnish certain materials and reserving the right to discontinue the work at any time, in which event the compensation of plaintiff ceases; on execution of the contract the company paid plaintiff $1,000 on account.

Plaintiff commenced work under this contract and continued the work until about January 24, 1922, at which time he was notified by defendants to cease work on the oil-wells he was drilling, and thereafter until March 22, 1922, his equipment remained on the ground with a watch

[772]

man. Plaintiff by reason of being prevented by defendants from completing the contract did not bring the action upon the written contract, but elected to sue on four different counts: (1) a common count in

indebitatus assumpsit

for materials, furnished and services rendered; (2) an account stated; (3) for a balance due upon a mutual- open and current account, and (4) a common count in

quantum meruit

for the reasonable value of the materials furnished and work and labor performed.

The answers of the defendants, each of which is the same, contain complete denials of the allegations of each count of the complaint, and in addition thereto as separate and special defenses plead the bar of the statute of limitations to each cause of action.

Ough v. Ansonia Oil Co.

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THE COURT.

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