Continental Rubber Works v. Bernson

HAZLETT, J.,

pro

tem.

Plaintiff sued upon an open account for the reasonable value of certain automobile tires and accessories bought by defendant and his partner, Morris Berncovich. Plaintiff was given judgment against defendant Bernson for $564.83 as the reasonable value of the tires and accessories, and $182.50 interest thereon from July 31, 1920, to the time of judgment on March 23> 1925.

Defendant Bernson appeals, contending that the demand sued upon was wholly unliquidated and for that reason the allowance of interest accruing prior to judgment was erroneous, and for the additional reason that plaintiff did not allege and the court did not find that plaintiff made any demand for payment prior to the commencement of the action.

Appellant filed no reply brief.

It appears that the account covered deliveries of goods from time to time during a period of several months at values which were determined for the first time at the trial, and that the market values fluctuated six or seven times during the period covered by the deliveries. It does not appear that the market values or prices were well established. Defendant Bernson made payments from time to time upon the account during the course of the deliveries.

In his answer defendant Bernson denied having purchased or received the goods and denied that they were of the reasonable value alleged in the complaint.

The question arises whether interest should have been allowed for any period before judgment.

Section 3287 of the Civil Code provides that “Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular

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day, is entitled also to recover interest thereon from that day, ...”

This section has been held to apply to actions upon open accounts

(Robinson