163 P. 870 | Cal. Ct. App. | 1917
This is an appeal from a judgment in favor of the defendant after his motion for a nonsuit had been granted. The facts are, therefore, undisputed and are these: On March 20, 1912, the defendant purchased from W. J. Sloane two items of goods amounting to the sum of $325. They were not paid for, and the said sum was charged to the defendant on the books of W. J. Sloane. Thereafter the account was assigned to the plaintiff, who commenced action thereon on September 24, 1915. The defendant answered pleading the bar of the statute of limitations under section
The sole question presented for determination upon this appeal is as to whether the account sued upon is such an open book account as to bring the action upon it within the provisions of subdivision 2 of section
"Sec. 335. The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows: . . .
"Sec.
It seems to us quite clear that the only reasonable as well as the only proper grammatical construction to be placed upon the foregoing section of the code is that the only book account upon which an action may be commenced within four years under subdivision 2 thereof is a book account upon which there is a balance due. This would necessarily imply that the account should be one upon which the debtor had made payments which, being credited to him, would leave a balance due, and also which, being made by him, would indicate his desire and intent that the account should remain open. It would seem that the intent of the legislature in amending subdivision 2 of section
The judgment is affirmed.
Richards, J., and Kerrigan, 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 March 26, 1917. *598