Garcia v. Sainz

California Court of Appeal Sep 30, 1922 No. Civ. No. 3925.Published

Before: Shaw

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Holding. The court held that the evidence was insufficient to support the findings of a mutual, open, and current book account or an account stated, and that the plaintiff's claims were barred by the statute of limitations.

Issues

Whether the evidence supported the finding of a mutual, open, and current book account.
Whether the evidence supported the finding of an account stated.
Whether the plaintiff's causes of action were barred by the statute of limitations.

Disposition. reversed

Quotations verified verbatim against the opinion

“The evidence is insufficient to support the finding complained of.”

“An account stated is a document—a writing—which exhibits the state of account between parties and the balance owing from one to the other, and when assented to, either expressly or impliedly, it becomes a new contract.”

“The testimony is insufficient to show an agreement between plaintiff and defendant based upon an open, mutual, and current book account that a specific balance was due from one to the other and which the defendant agreed to pay.”

[247]

SHAW, J.

The complaint herein contains three counts, by the first of which it is alleged that on August 15, 1915, plaintiff, at the special instance and request of defendant, loaned to him the sum of $1,000, upon which defendant, on November 15, 1915, paid $60, and on December 1, 1916, paid $12, and the further sum of $12 on March 1, 1919. By the second count it is alleged that plaintiff, on August 15, 1915, gave to defendant a check for $1,000, upon which the latter obtained said sum of money and promised to return the same, but has refused and failed to do so, save and except as to the payments thereon set out in the first count of the complaint. The third count alleges that in March, 1919, an account was stated between plaintiff and defendant whereby it was found that defendant was indebted to plaintiff in the sum of $916, which defendant agreed to pay.

In his answer defendant denies that plaintiff loaned him $1,000 as alleged, or that he made the payments thereon so alleged in the first count of the complaint; and likewise denies the delivery to him of the cheek for $1,000, or that he received payment thereof, and likewise denies that an account was stated between plaintiff and defendant, or that he ever agreed to pay said sum of $916 as alleged in the third count of the complaint. In addition to other affirmative defenses set up in his answer, defendant alleged that each of the causes of action stated in the complaint was barred by the statute of limitations.

The court made findings in favor of plaintiff, upon which .judgment was entered as prayed for and from which defendant has appealed.

Appellant, for want of sufficient evidence, attacks the findings to the effect, first, ‘1 that there is a balance due plaintiff by defendant upon a mutual, open and current account by and between the said parties and based upon a book account”; second, “that on or about the 1st day of March, 1919, an account was stated between the said parties and upon such statement a balance of $916 was found due said plaintiff from said defendant, and which amount the defendant then and there promised to pay plaintiff”; and, third, that neither of the three causes of action so alleged in the complaint is barred by the statute of limitations.

[248]

Garcia v. Sainz

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SHAW, J.

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