American Sec. Service, Inc. v. Baumann

• Decision Date: 13 June 1972
• Citation: 289 N.E.2d 373,32 Ohio App.2d 237,61 O.O.2d 256
• Parties: , 61 O.O.2d 256 AMERICAN SECURITY SERVICE, INC., Appellant, v. BAUMANN, Appellee.
• Court: Ohio Court of Appeals

Page 237

32 Ohio App.2d 237

289 N.E.2d 373, 61 O.O.2d 256

AMERICAN SECURITY SERVICE, INC., Appellant, v. BAUMANN, Appellee.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 13, 1972.

Syllabus by the Court

1. An action on an account is founded on a contract, express or implied, but it is not necessary that the items be entered in an account book, provided they are such as usually form the subject of a book account. The word 'account' refers to the relationship between the parties rather than a particular book or record.

2. A plaintiff is required to prove all the necessary elements of a contract when such are placed in issue in an action on an account, and, in addition, to prove the contract involves transactions that usually form the subject of a book account.

3. In an action on an account, the 'account book,' 'ledger,' or other record offered to prove the account is admissible only if it falls within the business records exception to the hearsay rule (which requires that the record be made in the regular course of business, at or near the time of the act), but it is not necessary that such a record be in existence or introduced into evidence in order to prove the existance of the account.

4. No evidence, otherwise competent, is rendered inadmissible because the action is on an account. Competent oral testimony is admissible to prove any or all of the issues, in an action on an account, including the existence of the account.

David L. Durschnitt and Victor Krupman, Columbus, for appellant.

William J. Abraham and Robert M. Sanders, Columbus, for appellee.

WHITESIDE, Judge.

This is an appeal from a judgment of the Court of Common Pleas of Franklin County.

Plaintiff filed its petition utilizing a short form pleading on an account to which was attached an exhibit consisting of an invoice. Defendant filed a general denial.

On the day of trial, plaintiff was granted a leave to amend its complaint by substituting an 'amended Exhibit A' to the petition which amended exhibit set forth a running account.

Defendant at that time filed an amended answer (1) denying that Exhibit A constituted a copy of an account 'in that same is not a copy of original account,' (2) denying that an actual account as such exists between the parties, (3) denying that any money is due and owing from defendant to plaintiff and alleging that the amount claimed is unreasonable, (4) generally denying all other allegations in the complaint, and (5) alleging that the complaint does not state a cause of action upon which relief may be granted.

At trial, evidence was adduced indicating that defendant employed plaintiff 'to follow her husband and gain what information we could upon his activities' for the period of approximately October 23 to December 31 of 1969 and that the charges were '$6 an hour per man, and 20 cents per mile per car, plus any expenses which might be incurred upon the investigation.' Testimony was also adduced that 'the total amount of the bill' that defendant incurred with plaintiff was $8,440.36, of which defendant had paid $4,300.

Plaintiff also offered an Exhibit 1 which was identical to the 'amended Exhibit A' attached to the petition, that was refused admission into evidence by the trial court as was certain oral testimony concerning the alleged account.

At the conclusion of the plaintiff's case, defendant made a motion to dismiss which was sustained by the trial court for failure of plaintiff to prove the account. Plaintiff appeals designating three assignments of error:

'1. The Court of Common Pleas erred, prejudicial to the plaintiff, in sustaining defendant's objection to the admission of amended Exhibit 'A' to the petition into evidence.

'2. The Court of Common Pleas erred, prejudicial to the plaintiff, in sustaining defendant's objection to the testimony of Mr. Harvie Howson regarding the work and services his corporation provided the defendant as set out in the ledger, amended Exhibit 'A' to the petition.

'3. The Court of Common Pleas erred, prejudicial to the plaintiff, by ruling against the manifest weight of the evidence.'

By its first assignment of error, plaintiff contends that the trial court erred in refusing to admit the exhibit (labeled both Exhibit A and Exhibit 1) into evidence. Former R.C. 2309.31 and 2309.32, as well as the present Civil Rule 10(D), require that when an action is founded on an account 'a copy thereof must be attached to . . . the pleading.' In Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 223 N.E.2d 373, Judge Troop stated at page 125, 223 N.E.2d at page 324, in referring to R.C. 2309.32:

'The statute is clear. In an action on an account the party must set forth the 'copy of the account."

At page 126, 223 N.E.2d at page 375, Judge Troop set forth the nature of the account required to be attached to the pleading, in the following language:

'An account must show the name of the party charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due.'

An examination of the offered exhibit indicates that it meets the requirements set forth by Judge Troop in Brown. However, testimony indicated that the exhibit had been prepared shortly before trial. Plaintiff relies upon Black v. Chesser (1861), 12 Ohio St. 621 in support of its position. In that case, it is stated at page 622:

'1. To constitute 'an account' within the meaning of section 122 of the code, it is not necessary that the items be entered in an account book, provided they are such as usually form the subject of book account.

'2. In an action upon an account, it is a sufficient giving 'a copy of the account,' under that section of the code, for the plaintiff, without having previously made any entries in an account book, to set down in writing in the form of an account, the items thereof, and file it with his petition.'

Plaintiff is correct in relying on that case for authority that amended Exhibit A attached to the petition as a 'copy of the account' was sufficient for that purpose and that an action for an account may be maintained even though the items have not been entered in an account book. However, the Black case and R.C. 2309.31 and 2309.32 and Civil Rule 10(D) provide a rule of pleading and not a rule of evidence. As stated in the first syllabus of Saperston v. Rae-Columbus, Inc. (1949), 151 Ohio St. 11, 84 N.E.2d 218:

'1. Section 11334, General Code, authorizes and approves a short form of pleading in an action founded upon an account, but does not prescribe the method of manner in which a case may be proved.' (G.C. 11334 was later recodified as R.C. 2309.32.)

Although short form pleading is permissible in an action on an account, the admissibility of evidence in an action on an account is determined by the ordinary rules of evidence. Obviously, the offered exhibit constitutes hearsay and is admissible in evidence only if it falls within one of the exceptions to the rule precluding the admission of hearsay into evidence.

In an action on an account, the 'account book,' 'ledger' or other record offered to prove the account is admissible only if it falls within the business records exception to the hearsay rule. This exception to the hearsay rule is codified as R.C. 2317.40, which reads as follows:

'As used in this section 'business' includes every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not.

'A record of an act, condition, or event, in so far as relevant, is competent evidence if the custodian or the person who made such record or under whose supervision such record was made testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition, or event, and if, in the opinion of the court, the sources of information, method, and time of preparation were such as to justify its admission.

'This section shall be so interpreted and construed as to effectuate its general purpose to make the law of this state uniform with those states which enact similar legislation.'

To be admissible, the record must have been 'made in the regular course of business, at or near the time of the act.' Here, the offered exhibit was prepared shortly before trial and was not prepared in the ordinary course of business. The trial court did not err in refusing to admit the exhibit into evidence. The first assignment of error is not well taken.

By its second assignment of error, plaintiff contends that the trial court erred in refusing to admit oral testimony regarding the work and services performed by it for defendant. In that regard, we note the following in the record:

'Mr. Krupman: The purpose of the testimony is to testify as to the working services that the American Securities, Inc., performed * * *.

'The Court: That's deviation entirely from your cause of action. * * *

'The Court: The action on an account is an action on an account so recognized by the rules of the Supreme Court and by statute. It's a statutory action.

'Mr. Krupman: Then the Court rules that I cannot put on testimony by the corporate officer regarding matters to be put on this ledger?

'The Court: That's going to be the Court's ruling, and I am going to sustain the objection.'

Account is defined in 1 American Jurisprudence 2d 371, Accounts and Accounting, Section 1 as follows:

"Account' is a word of ordinary and common acceptance in legal terminology and may be defined as an unsettled claim or demand by one person against another, based upon a...