Withers v. Matthews

FOX, P. J. This is an action on an account stated. The only question is whether the evidence is sufficient to support the findings and judgment that the parties had agreed upon a specific sum that would constitute the debt owed by defendants to plaintiff’s assignor (hereafter referred to as plaintiff) , and that defendants had expressly or impliedly promised to pay the same.

Prior to January 14, 1958, plaintiff had represented defendants in various legal matters and had expended various sums of money on behalf of defendants so that a debt arose which remained largely unpaid. Statements were sent from time to time and there were oral and written communications in which attempts were made to agree upon an amount and how and when payments were to be made. A complaint was filed on August 18, 1958, alleging five causes of action including one upon an account stated. The action was tried on the first amended complaint which also contained a cause of action on an account stated, It was agreed at the trial that [141]this theory would be tried first. Plaintiff prevailed and dismissed his other causes of action.

An account stated amounts to an agreement between the parties that a certain sum shall be paid and accepted in discharge of an obligation. (Rehbock v. Reservoir Hill Gasoline Co., 14 Cal.App.2d 233, 237 [57 P.2d 1357].) “To constitute an account stated it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.” (1 Cal.Jur.2d 367; Bennett v. Potter, 180 Cal. 736, 745 [183 P. 156].) Defendants admit that there was a debtor-creditor relation between the parties. But they dispute that there was ever an agreement upon the amount or a promise to pay that amount.

The principal question for us to consider is whether the evidence supports the finding “that it is true that shortly after January 15, 1958, and prior to January 31, 1958, an account was stated by and between [plaintiff] and the defendants, and each of them, wherein and whereby it was agreed and settled that defendants and each of them were then and there indebted to [plaintiff], over and above all credits, counter-claims and set-offs, in the amount of $9343.48 for fees and costs due [plaintiff]. That [plaintiff] thereupon, and in pursuance of said account stated, rendered a statement to defendants for said stated sum of $9343.48.” In support of this finding the record discloses the following: