San Jose Brick Co. v. Rhodes-Jamieson Co.

NOURSE, P. J.

Plaintiff sued on an open book account and recovered judgment for $3,000. The defendant appeals on a bill of exceptions.

For many years prior to January 9, 1926, the plaintiff had been in the business of selling brick to the defendant under an agreement whereby the defendant from time to time made cash advances on request of the plaintiff and the latter billed the brick to defendant at $1 less than market price. The accounts of the parties were evidenced by vouchers forwarded by the defendant with each check showing the advances made and the credits of such advances on purchases from plaintiff. This practice continued from November, 1923, to July, 1926. On January 9, 1926, defendant sent plaintiff a check for $1500 attached to a voucher designating it as “cash advanced on account”. On January 14, 1926, a similar check for $1500 was sent attached to voucher reading “cash advanced”. Both checks were received by plaintiff and cashed by indorsement of the president and manager of plaintiff. The proceeds of the first check were used by the plaintiff corporation to cover its pay-roll in the operation of its business. The proceeds of the second check were taken from the corporation- by its president and manager and were used by him in the purchase of additional stock of the plaintiff corporation for his own account.

On February 17, 1926, the defendant forwarded to the

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plaintiff corporation four vouchers showing an itemized account of the purchases of brick from plaintiff down to February 13, 1926, crediting defendant with the $3,000 advanced, and showing a balance of $734.32. Attached to these vouchers and enclosed in the same envelope were the defendant’s check covering the balance, and a letter of inclosure asking plaintiff to notify the defendant if any further amounts were due. The vouchers and the check were received by plaintiff, and the check was cashed in due course; but the plaintiff’s president testified he had not seen the letter. No complaint was made by plaintiff, but the parties continued to do business as formerly and the plaintiff billed the defendant upon the goods sold after February 13th only. Approximately two years after the statement on this account in February, 1926, plaintiff made demand on defendant for the payment of $3,000 for brick sold and delivered prior thereto and commenced this proceeding.