Southwest Hay & Grain Co. v. Young

• Decision Date: 28 April 1920
• Docket Number: Civil 1768
• Citation: 189 P. 244,21 Ariz. 405
• Parties: SOUTHWEST HAY AND GRAIN COMPANY, a Corporation, Appellant, v. MARVIN YOUNG, Appellee
• Court: Arizona Supreme Court

189 P. 244

21 Ariz. 405

SOUTHWEST HAY AND GRAIN COMPANY, a Corporation, Appellant, v. MARVIN YOUNG, Appellee

Civil No. 1768

Supreme Court of Arizona

April 28, 1920

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Affirmed.

Mr. W H. Stilwell, for Appellant.

Messrs Gandy & Cunningham, for Appellee.

OPINION

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 complaint was an itemized statement of the 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:

"The 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 by 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 sufficiency of the complaint in other respects, but relies solely upon the omission of the...