Garcia v. Sainz

The complaint herein contains three counts, by the first of which it is alleged that on August 15, 1915, plaintiff, at the special instance and request of defendant, loaned to him the sum of $1,000, upon which defendant, on November 15, 1915, paid $60, and on December 1, 1916, paid $12, and the further sum of $12 on March 1, 1919. By the second count it is alleged that plaintiff, on August 15, 1915, gave to defendant a check for $1,000, upon which the latter obtained said sum of money and promised to return the same, but has refused and failed to do so, save and except as to the payments thereon set out in the first count of the complaint. The third count alleges that in March, 1919, an account was stated between plaintiff and defendant whereby it was found that defendant was indebted to plaintiff in the sum of $916, which defendant agreed to pay.

In his answer defendant denies that plaintiff loaned him $1,000 as alleged, or that he made the payments thereon so alleged in the first count of the complaint; and likewise denies the delivery to him of the cheek for $1,000, or that he received payment thereof, and likewise denies that an account was stated between plaintiff and defendant, or that he ever agreed to pay said sum of $916 as alleged in the third count of the complaint. In addition to other affirmative defenses set up in his answer, defendant alleged that each of the causes of action stated in the complaint was barred by the statute of limitations.

The court made findings in favor of plaintiff, upon which .judgment was entered as prayed for and from which defendant has appealed.

Appellant, for want of sufficient evidence, attacks the findings to the effect, first, ‘1 that there is a balance due plaintiff by defendant upon a mutual, open and current account by and between the said parties and based upon a book account”; second, “that on or about the 1st day of March, 1919, an account was stated between the said parties and upon such statement a balance of $916 was found due said plaintiff from said defendant, and which amount the defendant then and there promised to pay plaintiff”; and, third, that neither of the three causes of action so alleged in the complaint is barred by the statute of limitations.

[1] It thus appears that the first count of the complaint states a cause of action based upon an oral promise made more than five years prior to the commencement of the action, and hence was, as alleged in the answer, barred by section 339 of the Code of Civil Procedure, which limits the time within which an action may be brought “upon a contract, obligation or liability not founded upon an instrument of writing,” except as provided in section 337 of the Code of Civil Procedure, to two years. The evidence is insufficient to support the finding complained of. Respondent, for some reason not disclosed in his brief, insists that as the transaction wherein the loan was made occurred in Arizona, and since defendant is not shown to have been in this state prior to the filing of the complaint, a different rule should apply. In the absence of proof to the contrary, the law of Arizona applicable to the facts in the case must be deemed to be the same as that of this state. (O’Sullivan v. Griffith, 153 Cal. 502 [ 95 Pac. 873 , 96 Pac. 323 ]; Fox v. Mick, 20 Cal. App. 599 [ 129 Pac.

What we have said as to the first cause of action is likewise applicable to the second cause of action.

[2] The third cause of action is based upon an alleged account stated, wherein it was found that defendant was indebted to plaintiff, as shown by the latter’s books, in the sum of $916, which sum the defendant agreed to pay. Conceding, but not holding, that the testimony is sufficient to show that the transaction had between plaintiff and defendant with reference to the loan constituted a book account, we are clearly of the opinion that the evidence fails to show that an account was stated between them. “An account stated is a document—a writing—which exhibits the state of account between parties and the balance owing from one to the other, and when assented to, either expressly or impliedly, it becomes a new contract.” (Coffee v. Williams, 103 Cal. 550 , 556 [ 37 Pac. 504 , 506]; Gardner v. Watson, 170 Cal. 570 , 574 [ 150 Pac. 994 ].) Since it was lost, the alleged account-book was not produced in evidence, and there is no testimony as to the character of the entries relating to the transaction. The last payment of $12, made about March 1, 1919, was not entered therein. An account stated constitutes a new agreement whereby the parties between whom there are reciprocal debits and credits fix and determine the amount due from one to the other. (Outwaters v. Brownlee, 22 Cal. App. 535 [ 135 Pac. 300 ].) The only testimony in support of respondent’s contention is that of plaintiff wherein he says that when defendant paid him the last $12 he stated that he would soon have some means whereby he would be able to pay plaintiff. There was no exhibition or inspection of the alleged book account and nothing was said as to what such balance was. The plaintiff says, “I told him [defendant] I needed money, and he told me he was soon going to have business where he could get some money and he would pay me.”

The effect of plaintiff’s testimony is that some five years prior to the commencement of the action he loaned

[3] Moreover, conceding the testimony sufficient to show an account stated, as found by the court, the time within which an action thereon should be brought, as provided in section 337 of the Code of Civil Procedure, is four years, running from the date of the last item of account so entered, which, according to plaintiff’s testimony, was the payment of $12 made on December 1, 1916, more than four years prior to .the institution of the action. Hence the cause of action was, as alleged in the answer, barred by the statute of limitations.

The judgment is reversed.

Conrey, P. J., and James, J., concurred.

. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 27, 1922.

All the Justices present concurred.