Heron v. Gaylor.

• Decision Date: 20 May 1942
• Docket Number: No. 4674.,4674.
• Citation: 126 P.2d 295,46 N.M. 230
• Parties: HERONv.GAYLOR.
• Court: New Mexico Supreme Court

46 N.M. 230

126 P.2d 295

HERON

v.GAYLOR.

No. 4674.

Supreme Court of New Mexico.

May 20, 1942.

Appeal from District Court, Rio Arriba County; David Chavez, Jr., Judge.

Suit by Kenneth A. Heron against D. H. Gaylor to recover purchase price of merchandise sold and delivered by the plaintiff to the defendant. From an insufficient judgment, the plaintiff appeals.

Affirmed.

Where plaintiff presented to trial court files in another case between same parties after parties had rested, and plaintiff thereafter discovered that his action had operated adversely to his interest plaintiff could not thereafter claim that trial court could not consider entire files in other case as evidence because no formal request had been made to reopen case for introduction of additional evidence.

Kenneth A. Heron, of Chama, pro se.

Reed Holloman, of Santa Fe, for appellee.

ZINN, Justice.

Suit was brought by plaintiff (appellant here) against the defendant (appellee here) to recover the sum of $264 for goods, wares and merchandise sold and delivered by the plaintiff to the defendant. The defendant entered a general denial. The case went to trial and judgment was entered in favor of plaintiff and against the defendant in the sum of $47.06, together with costs of the action. The plaintiff, seemingly not contented with the judgment in his favor, prosecutes this appeal.

Plaintiff sets up sixteen assignments of error on appeal, which assignments of error are summarized in his brief in chief under five points, as follows:

“Point I: The Court erred in its judgment in that the judgment is not sustained by the pleadings.

“Point II: The Court erred in permitting the introduction of additional evidence in the cause after both sides ‘rested’, without making and entering an order reopening the hearing for the admission of additional evidence and without notifying the plaintiff of its action.

“Point III: The Court erred in issuing its certificate of Court and in directing the Court Reporter to prepare a supplemental transcript on appeal, and in settling and signing the same as a Supplemental Bill of Exceptions in this cause.

“Point IV: The Court erred in making its order settling and signing a Supplemental Bill of Exceptions after it had settled and signed an original Bill of Exceptions and in refusing to strike the Supplemental Bill of Exceptions on Plaintiff's Motion.

“Point V: The Court erred in refusing to find that the defendant was indebted to the plaintiff in the sum of $253.50 with interest.”

The first point is based on the theory that inasmuch as the defendant failed to claim any offset or plead a counterclaim against the claim of the plaintiff the court could not credit the defendant the sums of $120.94 and $86.30. The defendant claimed he had theretofore been credited with these two items against the total of the plaintiff's claim.

There were two accounts between the plaintiff and the defendant. A land account and a merchandise account. This suit is on the merchandise account. The plaintiff at one time had given the defendant credit for the two items on the merchandise account. Later, according to the plaintiff, the defendant asked that the two items be credited to the land account which the plaintiff did. The defendant denied that he requested any such adjustment of credits.

[1] The suit was on an open account, to-wit, the merchandise account. The plaintiff attached to his complaint an exhibit. There is set forth in this exhibit the different items which the plaintiff claims constitute the merchandise sold to the defendant, the dates of the sales, and the amount due on each item. It is sufficiently evident that the suit is based on an open or running account.

“The term ‘open account’ means, ordinarily, an account based upon running or concurrent dealings between the parties which has not been closed, settled, or stated, and in which the inclusion of further dealings between the parties is contemplated.” 1 Am.Jur. 265, “Accounts and Accounting,” Sec. 3.

A mutual, open, current account is an account usually and properly kept in writing, usually a book. Therein is set down by express or implied agreement of the parties a connected series of debit and credit entries of reciprocal charges and allowances. The parties do not ordinarily intend that the individual items of the account shall be considered independently. They are a continuation of a related series. The account ordinarily is kept open and subject to a shifting balance as additional related entries of debits or credits are made thereto, until it shall suit the convenience of either party to settle and close the account. Then, pursuant to the original, express, or implied intention, there is but one single and indivisible liability arising from such series of related and reciprocal debits and credits, which liability is fixed on the one part or the other, as the balance shall indicate at the time of settlement. The single liability must be one mutually agreed upon between the parties or impliedly imposed upon them by law.

In the instant case the court found that the balance due the plaintiff amounted to $47.06. The plaintiff requested the court to find that there was a balance due the plaintiff in the...