278 P. 498 | Cal. Ct. App. | 1929
The plaintiff commenced an action against the defendants to recover on a book account. The defendants filed a joint answer. The action was tried before the court sitting without a jury. The court made findings of fact in favor of the plaintiff, and from a judgment entered thereon the defendants have appealed and have brought up a bill of exceptions which, on its face, appears to be a digest only of the proceedings below.
[1] The plaintiff makes a preliminary objection to the hearing of the appeal. He calls attention to the fact that more than sixty days elapsed between the date the judgment was entered and the date of the filing of the notice of appeal. The defendants reply that the judgment was entered July 25, 1928, that on July 30, 1928, they served a notice of intention to move for a new trial, that afterward they made their motion and that the motion was denied September 17, 1928. Thereupon they show that within thirty days they filed their notice of appeal. Under *349 these facts their notice of appeal was filed in due time. (Code Civ. Proc., sec. 939.)
[2] The first point made by the defendants is that the court erred in receiving in evidence the plaintiff's alleged book account. From the bill of exceptions it appears that the plaintiff produced a certain book kept by him and in which appeared the said account. The heading is "Dr. Hoffman job at Emerald Lake," then follows the year, 1924. Below in chronological order were entered charges for labor and materials January 7th to February 12th, both dates inclusive. No entries are made on the credit side. At the end the materials are summarized at $161.35, labor at $478.75, and freight at $4.75. Specifying their objections to the purported account, the defendants say that it does not show against whom the charges are made, it does not show in whose favor the charges are made, and that it is not a detailed statement in the nature of debit and credit arising out of contract or some fiduciary relation, and they cite and rely on Wright v. Loaiza,
The trial court made a finding that "all the allegations of plaintiff's complaint are true." The defendants contend the finding is not supported by the evidence. This attack is based on the facts which we have just discussed. For the reasons stated above we think the point is not well taken.
[3] In their answer the defendants pleaded that the action was barred by the statute of limitations. (Code Civ. Proc., subd. 2, sec. 337) The last item in the account was February 12, 1924. The action was commenced January 31, 1928. The trial court made a finding that the action was not barred. The defendants claim that the finding was not sustained by the evidence. They also assert that if the account was proved as alleged that the statute barred all items not falling within the four-year term. They also assert that the amendment of 1907 applied to actions to recover "abalance due . . . upon an open book account"; but that the amendment of 1917 is addressed to actions "to recover upon a book account." They stress the change made by omitting the words "a balance" and claim that the present rule is that the statute bars all items not falling within the four-year period. All of these contentions present solely a question of statutory interpretation. If the statute, as it stands, commences to run from the date of the last item proved by the plaintiff, all of the contentions just stated must be ruled against the defendants.
We think Furlow P.B. Co. v. Balboa L. W. Co.,
We find no error in the record. The judgment is affirmed.
Koford, P.J., and Nourse, J., concurred.