Wright v. Loaiza

*606 SLOSS, J. This action was brought against W. Y. Loaiza and Dolores Loaiza, brother and sister, to recover a balance of $465.30 claimed to be due to N. Gray and Company, a corporation, plaintiff’s assignor, for materials furnished and services rendered in connection with the funeral of a deceased brother of the defendants. The total amount of the bill was $615.30. The arrangements for the funeral were made by W. Y. Loaiza, who acted for himself and his sister, Dolores. The sister had authorized him so to do, stating that she would pay all of the charge over $150. These facts were communicated to N. Gray and Company at the time the order was given. Subsequently W. Y. Loaiza paid $150 on account of the charge. The court gave judgment against the defendant Dolores for the balance of $465.30, and she takes this appeal. By her answer the appellant pleaded the bar of section 339 of subdivision 1 of the Code of Civil Procedure. The only question is whether the court’s finding against this plea is sustained by the evidence. More than two years elapsed between the accrual of the liability and the commencement of the action. The contract was not in writing, and the action was therefore barred unless it may be viewed as governed by subdivision 2 of section 337. Before its recent amendment (Stats. 1917, p. 299), that subdivision fixed a four-year period of limitation for actions “to recover a balance due upon a mutual, open and current account or upon an open book-account.” The view of the court below was that the action was one upon an open book account. About the time of the rendition of the services, N". Gray and Company made an entry of the agreed amount in a book designated as “Funeral Record.’’ The charge was made against W. Y. Loaiza, and the subsequent payments made by him were credited on this account. Appellant’s name did not appear in any form on the books of plaintiff’s assignor. The briefs discuss at some length the question whether entries so made constitute an open book account. We need not go into this, since we are satisfied that, so far as the appellant is concerned, the action cannot be regarded as one upon a book account at all. A book account is defined as “a detailed statement, kept in a book, in the nature *607 of debit and credit, arising ont of contract or some fiduciary relation.” (1 C. J. 597.) A necessary element is that the book shall show against whom and in whose favor the charges are made. (1 C. J. 598.) We do not see how book entries of charges against, and credits in favor of, A alone, can be said to constitute a book account against B, within the meaning, at least, of section 337. It may fairly be assumed that the idea underlying the enactment of both subdivisions of this section was that a longer period of limitation might well be allowed where the existence of the claim sued upon was supported by some kind of written evidence. Where, on the other hand, the establishment of- the contract rests on oral testimony only, the law requires the action to be brought before the lapse of time may prevent the production of witnesses, or impair their memories. If this view be correct, the action against Dolores must be regarded as one upon an oral contract, and not one upon a book account. There is no account or other writing which in any way indicates her liability. To connect her with the transactions at all, resort must be had to parol testimony. Decisions from other jurisdictions are cited in the briefs on both sides. But these cases deal with an entirely different subject matter, and they throw no light on the question before us. We conclude, therefore, that the evidence does not support the finding against the defendant’s plea that the action was barred. The judgment is reversed. Shaw, J., Melvin, J., Wilbur, J., and Angellotti, O. J., concurred.