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Gardner and Beedon Co. v. Cooke

September 10, 1973

GARDNER AND BEEDON COMPANY OF SPRINGFIELD, RESPONDENT,
v.
COOKE, APPELLANT



Appeal from Circuit Court, Lane County. Helen J. Frye, Judge.

Robert W. Hill, Eugene, argued the cause for appellant. With him on the briefs were Hill & Schultz, Eugene.

Fredrick Siegrist, Springfield, argued the cause for respondent. With him on the brief were Sanders, Lively & Wiswall, Springfield.

In Banc. Holman, J.

Holman

Plaintiff, an electrical equipment wholesaler, brought an action upon several open accounts against defendant, a contractor. Defendant appeals from a judgment for plaintiff, on all accounts except two, pursuant to a trial by the court without a jury.

Defendant offered no evidence and the issues involved must be decided on the testimony of plaintiff's manager, who was plaintiff's only witness. He testified to the establishment of an open account with defendant which had existed over many years and which continued to the termination of the parties' business relationship. He also testified to the subsequent establishment of other separate accounts, simultaneously in existence, and identified plaintiff's ledger cards upon which defendant's accounts were kept. The ledger cards, which were received in evidence,

showed the date of the purchase, the invoice number, the amount of the invoice, the payments and credits, and the current state of the account at the end of each day that a purchase or payment was made or a credit given. The credits, as differentiated from payments, were entered on the ledger cards in red. The testimony was that ledger card entries were made simultaneously with the billing invoices by a business machine and thereafter the invoices were mailed to the customer. Neither the invoices nor any copies were introduced in evidence and therefore there was no evidence as to the specific items which were represented by each entry in the account.

Plaintiff's manager testified that all the material represented by the entries upon the ledger cards had been delivered to defendant, that the prices charged were reasonable, and that credit had been given for all items returned. He also testified that the complete operation of all aspects of plaintiff's business was under his direct supervision and control.

Defendant contends that plaintiff's proof is inadequate because, in the absence of the introduction of any invoices, there is no evidence of the charges for the individual items which were sold. In an action on an open account, not being an action on an account stated, some testimony is required showing the account's correctness in addition to the final amount. The question here is whether plaintiff's actual ledger account showing the debits and credits together with the testimony of plaintiff's manager is sufficient to make a prima facie case upon an open account. The following is a statement in 1 Am Jur 2d 391-92, Accounts and Accounting ยง 19:

"* * * [I]n an action on an open account the

account is not self-proving. Some testimony is required tending to prove its correctness and the fact that it is due and owing to the plaintiff before he has a right to recovery. Under the general issue or a general denial the plaintiff has the burden of proving his claim. In a suit upon an unsettled account the proof must go to the separate items of the account, and evidence tending to show that defendant was indebted to plaintiff in some amount is not such proof as is required to entitle plaintiff to a verdict. However, this does ...


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