Southwest Hay & Grain Co. v. Young

ROSS, J. Appellee, as plaintiff, brought this action against appellant, claiming a balance due him of $526.40 on a running account. Attached to the com [406] plaint was an itemized statement of tlie account verified by plaintiff. The answer of appellant was an unverified general denial, plea of overpayment to appellee, and a counterclaim for damages. Appellee had judgment for the full amount of his claim. The appellant’s first assignment of error is in the following words: 11 rp]ie court erred in admitting in evidence over the objection of defendant the statement attached to the complaint. The complaint did not . allege that the account sued on was an ‘open account’ and therefore did not allege a cause of action on an ‘open- account.’ ” Paragraph 1755, Civil Code, provides for the verification of an “open account” when sued on, and forbids the opposite party from denying the account, or any item therein, unless he has done so under oath at least one day before the trial. Appellee, proceeding' under this statute, offered and was permitted to introduce in evidence the verified account attached to his complaint. The only objection to this evidence was in these words: “We object to the introduction of this as not being a correct statement and demand proof of it.” The ground of objection here suggested has been abandoned bjr appellant, and he now says, because the complaint did not allege that the account sued on was “an open account,” it did not state a cause of action on an “open account,” and therefore it was error to accept the verified account as evidence. We cannot follow the reasoning. An open account is not such because the pleader may characterize it as one, nor because he fails to so designate it. It is the facts and circumstances entering into it, and not the pleader’s conception of it, that constitute it an open account. So, the complaint might very well allege a cause of action on an open account without naming it such. The assignment does not question the suffi [407] ciency of the complaint in other respects, hut relies solely upon the omission of the pleader to state that it is founded upon an open account. This assignment raises no question affecting the competency of the verified statement as evidence. It is' next assigned^ that the court erred in not granting appellant’s motion for a new trial for the reason that the evidence shows “that each transaction regarding each separate crop of hay was a separate transaction] that there was no open account.” Looking to the motion for a new trial, we find no ground therein set forth corresponding with this alleged error, or in the least resembling it. The court could not possibly have committed error in refusing a new trial upon that ground, as it was not assigned in- the motion, and therefore was never presented to the trial court. This assignment is not based upon any order or ruling of the trial court, and therefore does not fall within the terms.of the statute (paragraph 1231, Civ. Code) requiring a review by this court. This disposes of all of appellant’s complaints of the trial, and results in an affirmance of the judgment. CUNNINGHAM, C. J., and BAKER, J., concur.