131 P. 107 | Cal. Ct. App. | 1913
This is an action brought to recover the sum of $802.42 upon an account stated. The same cause of action was variously pleaded in eight separate and distinct counts of the plaintiff's complaint, but upon the trial of the action the plaintiff elected to rely solely upon the sixth count, which, by way of inducement to the allegation of an account stated, averred that plaintiff's assignor, Baker Hamilton (a corporation), had sold and delivered goods, wares, and merchandise to the defendant at the agreed price of $1,725.67; that the defendant agreed with said Baker Hamilton to pay interest on said sum at the rate of ten per cent per annum to be computed upon monthly unpaid balances; that the interest so agreed to be paid upon said monthly unpaid balances amounted to the sum of $276.75; that prior to the commencement of the action the defendant paid on account of said indebtedness the sum of one thousand two hundred dollars, which left a balance due and unpaid for principal and interest in the sum of $802.42.
Plaintiff's complaint then proceeded to allege the existence of an account stated as follows: "On or about the 1st day of March, 1910, defendant and said Baker Hamilton (a corporation) stated an account of the goods, wares and merchandise so sold and delivered and the payments on account thereof, as hereinbefore set forth, together with the interest thereon, and there was found due from said defendant to said Baker Hamilton upon such statement of account the sum of $802.42; that the defendant accepted the said accounting and *170 the balance so found due as aforesaid, and agreed to pay to said Baker Hamilton the said sum of $802.42."
The defendant by its answer denied this and every other allegation of the plaintiff's complaint; and upon the issues thus raised the case was tried, and judgment rendered and entered for the plaintiff, from which and from the order denying a new trial the defendant has appealed upon the judgment-roll and a bill of exceptions.
The trial court found the facts of the case to be in substantial accord with the allegations of the plaintiff's complaint. The defendant assails the sufficiency of the evidence to support the trial court's findings of fact to the effect that an account was stated between plaintiff's assignor and the defendant.
The evidence offered and received in support of this phase of the plaintiff's case was in substance as follows: It was the custom of plaintiff's assignor upon the last day of every month to make up a written and printed statement of its accounts with each of its customers, including the defendant. These statements were prepared and formulated so as to show: 1. The balance brought forward from the previous month; 2. Goods purchased during the current month; 3. A notice that "accounts not paid promptly when due will be subject to interest charge and sight draft without notice"; 4. A statement of the interest charged to date upon accounts "past due"; and 5. The balance due. Such statements were mailed monthly and regularly to every customer of the plaintiff's assignor, including the defendant. It was the fixed and uniform custom of plaintiff's assignor to charge each of its customers, including the defendant, with interest upon unpaid monthly balances at the rate of ten per cent per annum; and if the account was not paid when due the interest charged thereon was invariably added to the total for the next month. Such interest was regularly and specifically charged upon and added to unpaid balances, appearing in every monthly account rendered to the defendant. This was the uniform custom pursued by plaintiff's assignor in its dealings with the defendant extending throughout a series of years.
Thus far the evidence offered and received in support of the plaintiff's case stands uncontradicted in the record before us; but upon the question of the acceptance of the account as *171 stated the evidence upon the whole case is to some extent in substantial conflict. In that connection the evidence of the plaintiff was to the effect that the statement of the defendant's account with Baker Hamilton as rendered upon the thirty-first day of March, 1910, constituted the account stated and sued upon. The action was commenced upon the account thus stated on April 25, 1910; and the evidence of the plaintiff was to the further effect that at no time prior thereto was any objection made by the defendant to the statement of the account as rendered for the month mentioned, or to the statements as rendered for any previous month, either generally or as to any item of merchandise or interest charged therein.
These facts bring the plaintiff's case squarely within the settled rule that an account rendered and retained beyond a reasonable time without objection is deemed accepted, conceded to be correct, and thereby constituted an account stated: (Auzerais v. Naglee,
True, there is some testimony to be found in the record given upon behalf of the defendant which tends to show that objection was made to several items of the account other than the charges made for interest as rendered from time to time prior to the rendition of the account sued upon; but the trial court upon the whole evidence found that the account in suit was stated and accepted, as alleged in the plaintiff's complaint, and in the presence of a substantial conflict in the evidence the finding must be sustained.
The defendant complains of the charge made for interest at the rate of ten per cent per annum upon unpaid monthly balances, and which were merged in the sum total of the account as finally stated and sued upon. It is the defendant's contention that there is no evidence to support the finding of the trial court that the defendant agreed to pay interest upon unpaid monthly balances at the rate of ten per cent per annum or at any other rate, and that in any event interest could not be charged upon the monthly balances as stated from time to time in excess of the legal rate, except upon a contract in writing. *172
We have already shown the undisputed evidence of the plaintiff to be that the statements of account regularly rendered to defendant from month to month throughout a series of years contained a notice that interest would be charged upon unpaid monthly balances, and that in each instance interest was charged upon and added to the monthly unpaid balance at the rate of ten per cent per annum. The plaintiff's evidence further shows that it was the custom of plaintiff's assignor in its dealings with the defendant, as with all of its customers, to balance this account and render a statement thereof at the end of each month, in which was included a charge for interest upon unpaid balances at the rate of ten per cent per annum, which interest in turn was added to the balance stated for the succeeding month. While the charge for interest was not in any instance stated to be at the rate of ten per cent per annum, nevertheless every statement of account rendered to the defendant contained a charge for interest at that rate. No objection was ever made by the defendant to the interest charged and computed upon the unpaid monthly balances shown on the accounts rendered from time to time and finally included in the sum total of the account stated. It was not necessary that the defendant should have expressly agreed to the rate of interest charged. His assent thereto could have been rightfully inferred by the trial court from all of the circumstances of the transaction as herein enumerated, and therefore it must be held that the evidence supports the finding that the defendant agreed to pay interest upon unpaid monthly balances at the rate indicated. (Marye v. Strouse, 6 Sawy. 204, [5 Fed. 483].)
The precise point that interest in excess of the rate provided in section
Finally upon the subject of interest the defendant insists that the account stated and sued upon could not legally contain charges for interest upon interest; in other words, it is the defendant's contention that interest was computed and charged against him in contravention of section
This latter contention, it seems to us, is fully answered by the reasoning in the case of Auzerais v. Naglee,
The reasoning which permits a rate of interest upon an account stated in excess of the rate ordinarily fixed by statute, must likewise, in order to be consistent and logical, permit such interest to be compounded without the necessity of an agreement in writing.
It is said that the opinion in the case of Auzerais v.Naglee,
Finally appellant contends that there was no proof of the delivery of the account nor of the assignment of the cause of action to plaintiff. We have examined the record, but do not find that it supports this contention. In each case there is some evidence of the fact sufficient for the court to base its finding upon.
The judgment and order are affirmed.
Hall, J., and Murphey, J., pro tem., 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 April 9, 1913. *175