Culver v. Newhart

Mutual, Open and Current Account—Assignability—Husband and Wife—Conduct of Business—Power of Attorney—Insufficient Defense.—A mutual, open and current account, like an ordinary-account, is property consisting of a chose in action, which is the subject of transfer, sale or assignment, or reassignment. A husband who, in the course of Ms business, has acquired such an account, may assign and transfer Ms business, including such account, to his wife, under a recorded instrument, and may, under her power of attorney, continue the business for her in the same manner as before such assignment, and she may thereafter reassign said account to her husband, who may sue thereon as her assignee; and it is no defense that the last items on the debit side of the account were not contracted with the wife personally, and that all transactions were between the husband and the debtor sued.

Id.—Absence of Variance — Proof Corresponding to Allegations.— Where the complaint against the debtor sets forth all of the facts, including the assignment made by the husband to the wife, and the reassignment from the wife to the husband, and alleges that at the time of the reassignment the defendant was indebted to the wife in a certain sum on a certain “open, current and mutual account,” and that on the date of the reassignment she sold and assigned said account to the plaintiff, and the evidence shows that on that date there was due her on said account the specified balance, if it appears from the evidence that the account was of the character alleged, there is no variance.

Id.—Supposition of Stated Account—Issue as to “Mutual, Open and Current Account”—Immaterial Variance—Statute of Limitations Waived.—Assuming that the evidence shows the account to be a stated account, and not “mutual, open and current,” within the meaning of section 344 of the Code of Civil Procedure, still the variance arising by reason thereof would be immaterial under section 469 of the Civil Code, because the defendant could not be actually misled thereby to Ms prejudice, since he does not deny the existence of the account, but merely joined issue as to whether the account was “mutual, open and current,” and it is immaterial whether the account was stated or mutual, as the statute of limitations was not pleaded, and that defense is waived.

Id.—Account “Mutual, Open and Current”—Matters of Setoff.— The account in question is in its nature a “mutual, open and current account” within the contemplation of section 344 of the Code of Civil Procedure, since the credit side of the account besides one cash payment and several orders on others, had five items for lumber sold and delivered to the plaintiff as the original owner of the account by the defendant, thus consisting of matters of setoff pro tanto, which constituted the account “open, as contradistinguished from an account stated.” Mutfial accounts are made up of matters of setoff.

Id.—Evidence of Rental Value of Planer—Known Terms of Prior Lease—Support of Finding.—A charge to the defendant of $20 per month for the rental value of a planer, which had been before leased by plaintiff to a third party at that rental, to the knowledge of the defendant, and to which rental the defendant in practical effect succeeded, is properly considered as evidence of the reasonable rental value of the planer, and in the absence of any evidence to the contrary, it is sufficient to support a finding of such rental value of the use of the planer against the defendant.