Neal

—Plaintiff Maggio, Inc. sued defendant James E. Neal, its former vice president for marketing, to recover $69,000 loaned to Neal during his employment. Neal denied liability claiming the money constituted nonreimbursable advances against bonuses. Following a reference under Code of Civil Procedure section 638, 2 a retired superior court judge sitting as a referee rejected Neal’s argument and decided in favor of Maggio for the entire amount. The referee also determined that since the loans constituted an open book account and an account stated they were not barred by the two-year limitations period of section 339. The court adopted the referee’s findings and recommendations and entered judgment in favor of Maggio for $69,000 plus interest. Neal appeals from the judgment.

We conclude there is substantial evidence to support the finding that the sums advanced were loans which Neal was obligated to repay. We decide, however, that the court erred in accepting the referee’s conclusion the advances constituted an open book account and an account stated subject to the four-year limitations period of section 337. Applying the two-year statute of limitations requires a $24,000…

—I concur in the opinions expressed by the majority except as to the question of the existence of an account stated. I believe the record supports the conclusion an account stated does exist.

The agreement necessary to establish an account stated need not be expressed and is frequently implied from the circumstances. Further, when a statement is rendered to a debtor and no reply is made within a reasonable time, the law implies his agreement that the account is correct as rendered. (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600 [ 76 Cal.Rptr. 663 , 46 A.L.R.3d 1317 ]; California B. G. Ass'n v. Williams (1927) 82 Cal.App. 434, 442 [ 255 P. 751 ].) I would not diminish the application of these rules because an employer-employee relationship, rather than a commercial transaction, is involved.

In late 1983, Carl made two telephone calls to Neal concerning repayment of the advances. During both telephone conversations, Neal did not deny owing money to the corporation based on the advances and, indeed, expressly stated that something could be worked out. In April and June of 1984, letters were sent to Neal requesting repayment of the $69,000 in advances. No responses were…

[Opinion certified for partial publication. [1] ]

OPINION

WIENER, Acting P.J.

Plaintiff Maggio, Inc. sued defendant James E. Neal, its former vice president for marketing, to recover $69,000 loaned to Neal during his employment. Neal denied liability claiming the money constituted nonreimbursable advances against bonuses. Following a reference under Code of Civil Procedure section 638, [2] a retired superior court judge sitting as a referee rejected Neal's argument and decided in favor of Maggio for the entire amount. The referee also determined that since the loans constituted an open book account and an account stated they were not barred by the two-year limitations period of section 339. The court adopted the referee's findings and recommendations and entered judgment in favor of Maggio for $69,000 plus interest. Neal appeals from the judgment.

We conclude there is substantial evidence to support the finding that the sums advanced were loans which Neal was obligated to repay. We decide, however, that the court erred in accepting the referee's conclusion the advances constituted an open book account and an account stated subject to the four-year limitations period of section…