138 Cal. App. 336 | Cal. Ct. App. | 1934
In 1921 Gerardo Sica bought a vineyard in Fresno County, consisting of 160 acres, and at the same time engaged in the business of shipping grapes from California to eastern markets, having packing-houses in several cities in this state. He resided at all times in the state of New Jersey although, up to the time of his death on April 7, 1930, he spent a short period during each year in California in connection with this business. During practically all of this time the plaintiff was employed by Sica in a supervisory capacity on this ranch and in connection with the shipping of grapes to eastern markets.
A claim filed by him with the administrator of Sica’s estate having been rejected, the plaintiff brought this action, the complaint setting up two causes of action. In the first of these he sought to recover $12,154.16 for services rendered between March 1, 1922, and April 7, 1930, at the agreed and reasonable value of $125 per month. In the
The court found that the claim for services prior to June 1, 1924, was barred by the statute of limitations, and further found that services were rendered by the respondent to Sica between that date and April 7, 1930, that the reasonable value of said services was $125 per month, and that the sum of $8,775 was due, owing and unpaid on account thereof. It is appellant’s contention that the findings upon which this part of the judgment is based are not supported by the evidence. It is first argued that the complaint should be interpreted as alleging an agreed value for these services rather than the reasonable value thereof. Without objection the ease was tried upon the theory of reasonable value for the services rendered and this point may not now be maintained. It seems to be contended that the evidence would have justified a finding that the claim for services for some period after June 1, 1924, was also barred by the statute of limitations. Be that as it may, the evidence as to the times or periods during which Sica was absent from the state during these years sufficiently sustains the finding made as to the running of the statute. The main contention is that the evidence is not sufficient to show that the respondent worked for Sica continuously between June 1, 1924, and April 7, 1930. Several witnesses testified that they knew the respondent during all of this period; that during this time his business had been the taking care of Sica's ranch and assisting in the shipping of grapes; that he was on the ranch all of the time; that he was there “pretty continuously”; and to other facts of a similar nature. A son of the deceased testified that the respondent had been connected with his father’s business in Fresno County from the year 1921 until the day of his father’s death; that during this time he acted as a sort of a supervisor of the ranch work and also assisted in the shipping of fruit and at the packing-houses. Without further reviewing the evidence it may be said that the same, with the reasonable inferences therefrom, is entirely sufficient to sustain the finding that the services were rendered during
Upon the second cause of action, the court found as follows: “Within four years prior to the death of said Gerardo Sica said Gerardo Sica became indebted to the plaintiff in the sum of $10,000.00 upon an account stated for moneys loaned and advanced by the plaintiff to said Gerardo Sica at the special instance and request of said Gerardo Sica. No part of said sum has been paid except the sum of $215.00 paid on April 1st, 1925, the sum of $525.00 paid on January 15th, 1929, and the sum of $300.00 paid on September 30th, 1930; and the sum of $8,960.00, with interest on the sum of $9,785.00 from August 1st, 1927, to January 15th, 1929, interest on the sum of $9,260.00 from January 15th, 1929, to September 30th, 1930, and interest on the sum of $8,960.00 from September 30th, 1930, all at the rate of 7,% per annum, is now due, owing, and unpaid from the estate of Gerardo Sica and the defendant herein to the plaintiff.”
This finding is attacked by the appellant as not being supported by the evidence.
The complaint alleged that within five years prior to the death of Sica he had become indebted to the respondent in the sum of $10,104.14 upon an account stated for moneys loaned and advanced by the respondent. In this connection the court found that an account had been stated in the sum of $10,000 within four years prior to the death of Sica. In support of this finding the respondent relies upon the following evidence. Louis Sanzini testified that, in 1927, he had a conversation with Sica in which he asked him why he did not let the respondent go and that Sica replied that he could not do so as he owed him some money. In reply to a question as to how much he owed him he said “About $8000”. He also testified that in another conversation, in 1928, Sica told him that he would like to pay the respondent because the respondent once loaned him
“A. I wanted to sell him the crop and I wanted $65 a ton P. O. B. loaded, and we argued the price, and he offered me only fifty-seven and a half, the highest price he could pay, and in the meantime he was eating, and he was saying he cannot afford to pay a higher price because he has to make money to pay Mr. Petrosino. Q. And did he say anything about how much he owed Mr. Petrpsino? A. He make a number around $10,000. Q. Around $10,000? A. Yes. Q. Well how much money did he tell you he owed Petrosino? A. Around $10,000. Q. Around $10,000. Well I want to know how much? A. He mentioned $10,000. Now I didn’t ask him exactly or more or less.”
An account stated is something different from a mere acknowledgment that a party knows himself to be indebted to another in some amount. In Bennett v. Potter, 180 Cal. 736 [183 Pac. 156], the court said: “The theory upon which the action on an account stated is allowed is that transactions have occurred between the parties from which the relation of debtor and creditor has arisen, that thereafter one or both have rendered or made statements or declarations specifying definitely the amount due on account thereof and thereupon there has been an agreement, express or implied, by the one who is the debtor, to the other; that a certain sum is due from him on such account, together with an express or implied promise to pay the same. The action is based on the promise to pay thus established, and if it is not expressly made, facts from which such promise will be implied must be proven.”
In Ough v. Ansonio Oil Co., 99 Cal. App. 769 [279 Pac. 481], it is said: “An account stated presupposes not only an acknowledgment or admission of a certain sum due on adjustment of accounts between the parties, but the striking of a balance, or an assent, express or implied, to the correctness of the balance.”
And in Outwaters v. Brownlee, 22 Cal. App. 535 [135 Pac. 300] : “There must be a clear and definite acknowledgment of the debt, a specification of the amount due, or a reference to something by which such amount can be definitely and certainly ascertained. (Citing cases.) ”
We take it from the rules laid down in these and other cases that the stating of an account requires not only an acknowledgment or admission of a debt with an agreement to pay the same, either express or to be implied, but also that the acknowledgment and agreement to pay shall relate to a definite and fixed amount, which is either specifically stated or referred to in such a manner that the exact amount due can be definitely and certainly ascertained. We see no reason why this rule should be here changed or relaxed merely because the lips of both parties are sealed, one by death and the other by a statutory limitation upon his testimony. These very conditions and the general policy of the law with regard to claims against a deceased person would seem to justify and warrant a strict adherence to the established rules.
The judgment was for $20,834.44 and it appears from the findings and conclusions of law that this was made up of the $8,775 found to be due upon the first cause of action, plus $10,000 found to be due upon an account stated, with credit for various payments made thereon, and with interest from August 1, 1927, on the respective balances after deducting the payments upon the account stated. For the reasons given, the judgment should be modified by striking therefrom all in excess of the sum of $8,775 which was found to be due upon the first cause of action.
The judgment is modified by reducing the amount thereof to $8,775 and, as so modified, the same is affirmed.-
Marks, J., and Jennings, J., concurred.