RICHARDS, J.,
pro tem.,
Dissenting.
I dissent.
The facts of the ease are correctly set forth in the main opinion. In our view, however, the only question in the ease is as to whether the entries made in the boobs of the plaintiff’s assignor constitute an open book account as to the defendant Dolores Loaiza.
The account sued upon has all the elements of a book account according to the definition of that term. It was entered in a book; it was a detailed statement in the nature of debit and credit, arising out of a contract; it contained the names of a creditor and debtor; so far as the defendant
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W. T. Loaiza is concerned, it is undeniable that it was a book account; and since W. T. Loaiza made payments which from time to time were credited upon it, it was as to him an open book account.
(Mercantile Trust Co.
v.
Doe,
26 Cal. App. 246, [146 Pac. 692].) Was it also a book account as to his sister Dolores Loaiza? The evidence showing the authorization of W. Y. Loaiza as the agent of Dolores Loaiza to incur the indebtedness, and hence, of necessity, to create the account, is undisputed. In ordering .the goods in question W. Y. Loaiza acted in the dual capacity of a principal and of an agent for his sister, Dolores Loaiza, and was so understood to be acting by the creditor at the time of the creation of the account. This being so, his name upon the creditor’s books represents both his prineipalship and his agency, as fully as though the name of his principal had been inserted. The authorities are in practical uniformity upon the proposition that an action may be brought against the principal upon an account for goods charged upon the books of a creditor to the agent, and that, in this respect, book accounts and simple contracts in wilting made in the name of an agent stand upon the same footing. (1 Mechem on Agency, sec. 1424; 2 Id., sec. 2055; 1 Clark & Skyles on Agency, sec. 458.) In Mechem on Agency, section 2055,
supra,
it is stated that “the cases are very numerous in which orders, proposals and informal contracts of all kinds, though nominally in the name of the agent, are really an account of the principal. In such cases the principal is liable, and he may also sue.” In Clark & Skyles on Agency, section 458, it is stated to be the rule that a principal may be sued on a contract made in the name of his agent, and that this rule applies not only to oral contracts, but to all simple contracts in writing, and parol evidence is admissible to show that a person executing a written contract in his own name, did so in fact as the agent of an undisclosed principal. The text of the foregoing authorities is founded in part upon the following cases, in each of which the action was against the principal upon an account standing in the name of the agent:
Meeker
v.
Cleghorn,
44 N. Y. 349;
Foster
v.
Persch,
68 N. Y. 400;
Dyer
v.
Swift,
154 Mass. 159, [28 N. E. 8];
Gardner
v.
Bean,
124 Mass. 347;
Lyon
v.
Chamberlain,
41 Mich. 119, [1 N. W. 983];
Byington
v.
Simpson,
134 Mass. 169, [45 Am. Rep. 314]. In the case last above cited, which was an action to recover a balance
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due upon a building contract, in the name of an agent, the court says, “that a party not mentioned in a simple contract in writing may be charged as a principal upon oral evidence even where the writing gives no indication of an intent to bind any other person than the signer, is as well settled as any part of the law of evidence.”
In an action either upon a book account or upon a written contract, the boob in the one case, and the writing in the other, are merely the evidence of the transaction, and no distinction can be drawn as to their admissibility in evidence when the fact of the agency is shown. Had this action been brought within the period of the two-year limitation, to recover upon the original account, there would seem to be no question upon the strength of the foregoing authorities as to the right of the creditor to recover against Dolores Loaiza upon this account, standing as it did in the name of her agent, W. Y. Loaiza, after proof of his agency. This action, however, was brought to recover a balance due upon said account after the two-year period of limitation for actions upon simple accounts had expired. The defense of Dolores Loaiza is the statute of limitations. The respondent’s answer to this defense is that the account had become an open book account by reason of payments made thereon by W. Y. Loaiza prior to the commencement of this action, and hence that this action, being one to recover the balance due upon an open book account, the period as to it is four years, as provided in subdivision 2 of section 337 of the Code of Civil Procedure, as said section and subdivision read at the time this action was begun. It must be admitted that this action has become an open book account as to W. Y. Loaiza, by virtue of his payments thereon.
(Mercantile Trust Co.
v.
Doe,
26 Cal. App. 246, [146 Pac. 692].) Why has it not also become an open book account as to his principal, Dolores Loaiza, for a like reason? The same reasons and the same authorities which would render this a book account against Dolores Loaiza, under the name of her agent, W. Y. Loaiza, would render it an open book account against her, if by the payments thereon it had become an open book account against him. It is true the payments were not made by her, but they were made by her coprincipal upon this account, and were made for her benefit and in order to re
[610]
duce, as they did reduce, the amount of her liability thereon. Having thus received the full benefit of these payments made by her coprincipal, who was also her agent upon this account, and which had the effect of keeping the account open as to him, is she in a position to claim that it was closed as to her so as to entitle her to plead the two-year limitation as her sole defense to this action? There would seem to be neither reason nor justice behind such a contention.
The judgment should be affirmed.
Victor E. Shaw, J.,
pro tem.,
concurred.