Schwindt v. Billiwhack Stock Farms, Ltd.

McCOMB, J. From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover a sum due upon a mutual, open, and current account, defendants appeal.

The evidence being viewed most favorably to plaintiff (respondent), the essential facts are:

Plaintiff had been employed by the Valley Dairy Company in Los Angeles for a number of years at a salary of $275 per month. Defendant Fratkin was an officer of the Valley Dairy Company. The latter part of 1932 or the first part of 1933 plaintiff had a conversation with defendant Fratkin, president of defendant corporation, in which conversation Mr. Fratkin asked plaintiff if he would be willing to go to work for the defendant corporation in Ventura County. Plaintiff replied that he would, provided that he receive $275 per month salary, to which defendant Fratkin agreed. Thereafter plaintiff went to Ventura County and became the manager of defendant corporation.

On the first pay day defendant Fratkin handed plaintiff a check for $100 and stated, “We are a little short of cash just now and I would like to just give you $200.00 a month for the [210]time being and I will give you the rest of it once in a while, the same as I did at the Valley Dairy.” This procedure was followed, plaintiff, while he was in charge of the payroll checkbook of defendant company, making appropriate entries on the check stubs indicating that the $200 a month was being advanced on account of his salary. During the period of plaintiff’s employment by defendants he purchased pigs, a saddle, lumber, tires, and milk from defendant corporation. A record was kept by defendant corporation of the milk which it furnished to plaintiff, appropriate entries being made in a record kept by defendant corporation, and from time to time there were entries made in the account by defendant corporation purporting to write it off. The last entry in defendant corporation’s ledger account with plaintiff was dated September 30, 1938.

After plaintiff severed his connection with defendant corporation, he filed, October 2, 1939, the present action to recover the balance he claims to be due him on account of unpaid salary on a mutual, open, and current account.

Defendants urge for reversal of the judgment these propositions :

First: There is no substantial evidence to sustain the trial court’s finding that there was a mutual, open, and current account between plaintiff and defendants.