Gray

The plaintiff and respondent as assignee of an alleged claim for personal services and expenses in the sum of $977.62, instituted an action upon an “open book account.” Judgment was rendered in his favor for $798.62, and the defendants appealed.

Among the other grounds of defense, it was contended that the cause of action was barred by section 339 of the Code of Civil Procedure. It appears that the only evidence offered by the plaintiff in support of the alleged book account consisted of entries in a diary from which the witness refreshed his memory. He testified to various conversations, journeys of persons to certain lands of the defend ants, the making of surveys, drawings and charges therefor, and that the sum of $400 had been paid on account. There was no showing of even a pretended “account” as contemplated by the Code of Civil Procedure.

We think the instant case is squarely within the rule announced in Merchants’ Collection Agency v. Levi, 32 Cal. App. 595 [ 163 Pac. 870 ]. The only question there presented was as to whether the account was such that an action might be maintained thereon within four years from its inception, or was barred after the expiration of two…