R. E. Tharp, Inc. v. Miller Hay Co.

• Court: California Court of Appeals
• Writing for the Court: GARGANO; CONLEY, P.J., and STONE
• Citation: 67 Cal.Rptr. 854,261 Cal.App.2d 81
• Parties: R.E. THARP, INC., Plaintiff and Respondent, v. MILLER HAY COMPANY, and Ted Miller, Defendants and Appellants. Civ. 851.
• Decision Date: 12 April 1968

Page 854

67 Cal.Rptr. 854 261 Cal.App.2d 81 R.E. THARP, INC., Plaintiff and Respondent,
v.
MILLER HAY COMPANY, and Ted Miller, Defendants and Appellants. Civ. 851. Court of Appeal, Fifth District, California. April 12, 1968.
Hearing Denied June 5, 1968.

Page 855

[261 Cal.App.2d 83] Schroeder, Campbell & McFeeters, by Truman F. Campbell, Fresno, for defendants and appellants.

Lester J. Gendron, Madera, for plaintiff and respondent.

Page 856

GARGANO, Associate Justice.

Plaintiff, a licensed radial highway common carrier, brought this action to recover $11,935.22 from defendant on an open book account. ¹ During the trial plaintiff attempted to prove that the money which it sought to recover was for undercharges resulting from the transportation of defendants' hay. Defendants, however, objected to plaintiff's evidence on the ground that it was at variance with the pleadings and the objection was sustained. Plaintiff then moved the court for leave to amend its complaint to state a cause of action for an account stated in order to conform to proof. Plaintiff's motion was granted by the court and the complaint was deemed amended accordingly. At the conclusion of the trial the trial judge (Judge Coffee) resigned before awarding judgment to either party. By stipulation the cause was submitted to another judge (Judge Hammerberg) for decision on the reporter's transcript. Judgment was granted in favor of defendants and plaintiff moved for a new trial. It asserted that irregularities in the proceedings prevented plaintiff from having a fair trial; plaintiff alleged that Judge Coffee erred when he rejected plaintiff's proffered evidence relating to the undercharges. Plaintiff's motion was granted and this appeal followed.

[261 Cal.App.2d 84] Defendant correctly contends that plaintiff did not prove an account stated. There is absolutely no evidence that the parties ever struck a balance on the undercharges. On the contrary, it is clear from the evidence that defendants consistently denied liability for the undercharges and maintained that plaintiff's hauling services were performed under a contract of sale, not one of transportation. It is elementary that an account stated is an express or implied agreement between a debtor and his creditor that a certain sum shall be paid and accepted in discharge of the debtor's obligation (1 Cal.Jur.2d, § 32, p. 366, 1952 ed.). And an open book account is not transformed into an account stated by striking a balance unless both parties expressly or impliedly assent to its correctness, or unless the debtor expressly or impliedly acknowledges that he owes the amount struck (1 Cal.Jur.2d, § 50, p. 377, 1952 ed.) ²

Defendants also correctly assert that plaintiff could not recover undercharges under the pleaded 'open book account.' Plaintiff's president testified that defendants calculated the charges due each week and paid plaintiff on that basis. Thus, the open book account terminated with each weekly payment even though the balance struck may have rested on an illegal computation (Groom v. Holm, 176 Cal.App.2d 310, 1 Cal.Rptr. 410). In fact, an open account between a shipper and a licensed radial highway common carrier cannot remain open for more than 15 days under the 'Collection of Charges Rule' of the Public Utilities Commission. ³

Page 857

The plaintiff's right to recover undercharges in the instant case, if it exists at all, is based on defendants' legal obligation (a so-called 'implied promise') to pay the minimum transportation rates fixed by the Public Utilities [261 Cal.App.2d 85] Commission which became a part of the parties' original transportation agreement as a matter of law despite the parties' billing procedure (Gardner v. Rich Mfg. Co., 68 Cal.App.2d 725, 158 P.2d 23; Pellandini v. Pacific Limestone Products, Inc., 245 Cal.App.2d 774, 54 Cal.Rptr. 290). Thus, it is manifest that plaintiff's proffered evidence was at variance with the pleadings and that the trial court correctly sustained defendants' objections. It is settled that a plaintiff must recover, if at all, upon the cause of action alleged and not upon some other which may appear from the proofs (Bailey v. Brown, 4 Cal.App. 515, 88 P. 518; Lewis v. South S.F. Yellow Cab Co., 93 Cal.App.2d 849, 210 P.2d 62).

Thus, the crucial question is whether the trial judge should have ordered an appropriate amendment to plaintiff's pleadings even though the amendment would have required plaintiff to state an entirely different cause of action. If so, the court erred when it neglected to do so, and this error would support the order for a new trial. On the other hand, if the trial judge was not under a duty to order an amendment the subsequent order granting a new trial was in excess of the court's discretion. It is the rule that there is no legal ground for granting a new trial if it is granted for an error of law which did not occur (Parker v. Womack, 37 Cal.2d 116, 230 P.2d 823).

It is absolutely clear from the record that defendants were not misled by the pleadings as to the true nature of plaintiff's action. Defendants requested and received a bill of particulars prior to trial in which the claimed undercharges were itemized in detail. Moreover, it is difficult to believe that defendants were unaware of the investigation of the Public Utilities Commission or that they did not know that the commission had directed the plaintiff to collect the undercharges in question. Thus, we may safely assume that defendants were prepared to meet the undercharges issue at the time of trial. Nevertheless, it has long been the decisional law of this state that a trial judge who...