Grant v. Main Oil Co. of Cal.

WOOD (W. J.), J.,

pro

tem.

This action was commenced to recover the sum of $1,925, alleged to be due for services rendered to defendant by plaintiff’s assignor by hauling oil. Defendant appeals from a judgment rendered in plaintiff’s favor and from an order denying a new trial. The com

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plaint contains three counts, all of them covering the same transaction. In the first of these counts, all of which are in the usual form, a cause of action for the reasonable value of the services is set forth; in the .second count plaintiff states causes of action on an open book account and on an account stated; and in the third count an express promise to pay for the hauling is set forth. The trial court found in favor of plaintiff on all of these causes of action.

Defendant now contends that at the commencement of the trial plaintiff elected to stand upon his cause of action based upon an account stated and that the evidence is insufficient to support the findings that an account was in fact stated. The record does not disclose that plaintiff made such an election. We quote from the reporter’s transcript: “Mr. Emmons: We don’t intend to elect. We have three counts. We are going to put in evidence under the amended complaint. Mr. Mahon: You state more than one cause of action and they are incompatible. Mr. Emmons: We refuse to elect. We offer the evidence if relevant and sufficient, the court will render judgment on the cause of action we establish. The Court: Well, go ahead. (To Mr. Mahon) You have preserved your rights. Mr. Emmons proceeds at his peril.” The evidence was amply sufficient to establish all of the causes of action with the possible exception of that based upon an account stated. It would therefore be useless to discuss further the cause of action last mentioned.

Counsel for plaintiffs states that the “main ground” upon which he seeks a reversal of the judgment is the alleged error of the court in admitting in evidence the books of plaintiff’s assignor. He points out that the party who made the book entries had no personal knowledge of the amount hauled, but received data on the subject from the report of the driver, who was a witness at the trial. It is not necessary to pass upon this point for the reason that the evidence clearly established, without the introduction of the books, that plaintiff was entitled to the judgment rendered. All the points necessary to be proved to support the findings on the first and third causes of action were covered by the testimony of plaintiff’s witnesses. The defendant presented no evidence whatever in contradiction thereof. The general manager of the defendant company, called as a witness for plaintiff, not only gave testimony which made it clear