Young v. Lopresti

THOMPSON (R. L.), J.,

pro tem.

This is an action upon an account stated. The defendant appealed from a judgment of $660.67 in favor of the plaintiff.

Dennis, Kimball & Pope, Inc., of the state of New York, is a fruit marketing corporation. In October, 1925, through its California agent, this corporation advanced $1,750 to the appellant to harvest and market his grape crop. Pursuant to agreement six cars of grapes were shipped to this company on consignment, and sold in the New York market for the account of appellant. The complaint alleges that “on or about the 19th day of November, 1925, ... an account was stated between Dennis, Kimball & Pope, Inc., and the defendant” in which statement it was agreed be

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tween the parties that a balance of $660.67 was due the corporation, no part of which had been paid. This account was assigned to the respondent. In proof of the stated account, Mr. Barr, the local agent of the marketing corporation, testified that on December 9, 1925, he wrote a letter to the appellant inclosing his account, together with bills of lading, which letter concluded with this language: “Also statement of your account showing a balance due us of $660.67, ...” The witness said that in January, 1926, just after the first of the year, he visited the appellant, and he testified, “We discussed the deficiency that was owing to the company, . . . and he mentioned that he would like to pay although he did not have the money at that time, but he would like to carry it over until the following season, when he would make a contract with us to ship fruit to offset the balance, . . . He said he would like to allow that to go over to next season’s business, and if there was any amount of money

due from fflie railroad

on the claim, that that would also tend to lessen the amount that was owing us.” The court said: “Q. As I understand you, . . . Mr. Prestí . . . asked that you allow the $660.67 to be carried over and applied on his account for the following year, and also the adjustment of the freight charges, and you agreed to that, did you? A. Yes, sir.” No fruit was shipped from the appellant to the marketing corporation the following year. . No freight rebates were ever paid on account of appellant’s claim. There is no evidence that any such claims are due. Prom these facts the court found that “on or about the 19th day of November, 1925, and in the month of January, 1926, ... ” an account was stated between the parties, and an agreement reached that the sum of $660.67 was due from the appellant. Judgment was thereupon rendered for that sum.