Craig v. Lee

KERRIGAN, J.

This is an appeal from a judgment rendered in favor of the defendants in an action brought by plaintiff to recover the sum of $650, alleged to be due from them upon an account stated for legal services.

On April 22, 1912, plaintiff sent to the defendants by mail a statement of his account showing a balance due from them of $650. The letter or statement was not answered. On August 14, 1913, the plaintiff again wrote to the defendants in reference to the account, but this letter was not received by them and was returned to the plaintiff. On the 18tli of that month the plaintiff wrote another letter to the defendants, being a copy of the letter of the 14th, and inclosed with the letter a bill for $650, together with a promissory note for that amount, payable in ninety days, which he requested the defendants to execute. On August 22d this letter was answered by the defendant James A. Lee to the effect that he

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expected to receive some money at an early date, and that when funds were available he would endeavor to adjust the account. Respecting the request for a note the letter states: ‘1 The time is so short that I do not deem it necessary to issue any note at this time.” There were two other letters from the plaintiff to the defendants concerning the amount claimed to be due from them, but they have no bearing upon the points to be decided. Later on in the same year plaintiff again wrote to the defendants asking for a settlement of his bill of $650, to which the defendants shortly thereafter replied stating that while they were anxious to pay all their just debts, they at that time were without funds, but that in the near future they expected to receive some money, in which case they would endeavor “to adjust the account forthwith.” In addition to these letters there was a conversation between the plaintiff and the defendants, in which the latter said that within a certain number of days they would perhaps be able to “settle up.” It is conceded, as of course it must be, that this conversation did not create an account stated.

(1) As to the letter of April 22, 1912, written by plaintiff to the defendants inclosing his bill for $650, assuming that because it remained unanswered it became an account stated on that date, still the statute of limitations had run against it when the present action was commenced. Where the acknowledgment of a debt is not in writing, the statute begins to run against the account stated from the date of the settlement, and an action must be brought within two years after such settlement. (Code Civ. Proc., sec. 339, subd. 1;