McDonald v. McDonald

DORAN, J. This is an appeal from the judgment.

The plaintiff and defendant are brothers. Plaintiff worked as business or office manager for several years from 1946 to February 11, 1949. The action herein was filed March, 1950.

The action is for money due for services rendered. The complaint, which alleges eight causes of action, prays for $6,700. The judgment is for $4,863.68 and $789.30 costs.

[20]Appellant’s cross-complaint was, in effect, merely a counterclaim.

It is contended by appellant that,

“I. The trial court erroneously found defendant became indebted to plaintiff on a mutual open and current account for work, labor and services rendered by deducting from said indebtedness the amount found to be due defendant on his cross-complaint for misappropriation by plaintiff of cross-complainant’s funds, to support plaintiff’s Fourth cause of action for a balance alleged to have accrued on an open mutual and current book account for services rendered.

“(a) Can misappropriation of funds alone be a sufficient demand for the establishment of any agreement or expression of mutuality necessary for a mutual open and current book account and/or any other mutual open and current account?

“II. Can plaintiff recover on his Fourth cause of action for a balance due on a mutual open and current book account, for work, labor and services rendered, without a Finding or evidence to support a Finding that a book account or record existed containing entries for work, labor or services accrued or unpaid?

“ (a) Can plaintiff after preparing in his own handwriting checks plaintiff drew on defendant’s bank account, whereon plaintiff wrote ‘Compensation to 1/15/49’; ‘Compensation to 1/31/49’; and ‘Compensation to 2/15/49,’ after which his services were terminated, thereafter and without prior demand therefor, recover against defendant for additional salary and wages from 1946 to February 11, 1949 on a mutual open and current account in view of his testimony in this case?

“III. Can plaintiff recover for salary and wages for the years 1946 and 1947 whether on an ‘open, mutual and current, ’ or otherwise, where, in an affidavit for a subpoena duces tecum to obtain and produce at the trial, books of appellant, respondent’s attorney of record stated: ‘Plaintiff concedes that the recovery of salary or wages for the years 1946 and 1947 is not involved in this trial’?