Groom v. Holm

• Court: California Court of Appeals
• Writing for the Court: TOBRINER; BRAY, P. J., and FOLEY
• Citation: 1 Cal.Rptr. 410,176 Cal.App.2d 310
• Parties: W. D. GROOM, Plaintiff and Appellant, v. Fred HOLM, Holm Solbeck Lumber Company, Hold Timber Industries, et al., Defendants and Respondents. Civ. 18396.
• Decision Date: 17 December 1959

Page 410

1 Cal.Rptr. 410 176 Cal.App.2d 310 W. D. GROOM, Plaintiff and Appellant,
v.
Fred HOLM, Holm Solbeck Lumber Company, Hold Timber Industries, et al., Defendants and Respondents. Civ. 18396. District Court of Appeal, First District, Division 1, California. Dec. 17, 1959.

Page 411

Robert L. Bostick, Oakland, for appellant.

[176 Cal.App.2d 311] William Steinberg, Abraham Berry, San Francisco, for respondents.

TOBRINER, Justice.

Appellant prosecutes this appeal from an adverse decision in which the court found any debt of respondents owing to appellant to be barred by the statute of limitations and held respondents not to be indebted to appellant within the last four years upon an 'account stated in writing,' upon a 'mutual, open and current account stated in writing,' or upon an 'open book account stated in writing.' The court declared that within the four years prior to the filing of the complaint appellant had not demanded to respondents any sum upon an open, current and mutual account in writing.

The major issue in this appear turns on whether or not appellant proved a mutual, open and current account. Appellant urges as his sole contention that 'the course of dealings between the parties gave rise to a mutual open and current account'; hence, we do not discuss the pleadings which differently state the claim. A subsidiary issue involves the effect of testimony that appellant agreed to haul respondents' timber for less than the established Public Utilities Commission rates.

The facts fall into three categories: the nature of the oral agreement for hauling charges entered into by the parties; the status of the charges of trucking proffered by appellant trucker to respondents; and the effect of the so-called 'advances' of respondent shipper.

The parties entered into an oral lumber-hauling agreement in March, 1953, but the evidence conflicts as to whether appellant agreed to charge less than Public Utilities Commission rates. When appellant transported lumber from respondents' mill, appellant, or his drivers, received a shipping tag from the mill which indicated the amount of the load and its destination. These shipping tags were made out in triplicate, the mill kept one copy; the customer, the second copy; appellant, the third copy. Subsequent to delivery, appellant computed the hauling charge on his copy and submitted it to respondents twice a month.

Whether or not the charges on the shipping tags indicated the agreed price remains in dispute between the parties. Respondent's office manager, Mrs. Solbeck, testified that she placed the figures on the tags for the sole purpose of paying the Public

Page 412

Utilities Commission taxes; that with appellant's help she computed the amounts which appellant was to receive. [176 Cal.App.2d 312] In any event these amounts fell below the Public Utilities Commission rates; a number of the tags showed one figure on the front and another on the back, generally lower, which was the amount respondents actually paid. Moreover, the figures on the back of these tags were computed on so much per 1,000 feet of lumber. Such a practice violates Public Utilities Commission rules.

The factual background of the claimed advances begins in March, 1953, when respondents extended $850 to appellant so that he could get his truck repaired and commence hauling; during the subsequent period from March, 1953, to December, 1954, appellant constantly obtained advances from respondent. Fred Holm testified: '* * * Mr. Groom could not wait until payday on the first or the fifteenth. And he was constantly after Mrs. Solbeck for draws and advances between paydays. And if he drew $5,000 on the 10th day of September when * * * [Mrs. Solbeck] settled with him on the 15th day, she would pay him in full for what we owed him and take all draws into consideration. And I also find out in consulting with our office that Mr. Groom was constantly overdrawn, constantly.' Mrs. Solbeck stated that such advances or draws were not loans to appellant, but payments to offset the hauling charges.

In addition to the shipping tags, appellant sometimes presented statements to respondents which were paid 'on his regular rate.' Appellant claims that this course of dealings resulted in respondents' becoming indebted to appellant for the year 1953 in the amount of $4,118.12 and for the year 1954 in the...