Koeberle

The respondent, as assignee of J. W. Robinson Company, drygoods merchants, instituted this action against the above-named defendants for a balance claimed to he due for merchandise sold and delivered upon an open book account in September and October, 1919, and an account stated was also made the subject of a second count of the complaint, aggregating $2,148.37. The total amount for alleged purchases was $4,083.62, upon which $1,806 had been paid in cash, and defendants were credited with $129.25 for goods returned. Since the trial Thomas O’Day died, and the administratrix of his estate was substituted in his stead during the pendency of this appeal.

It appears that during the year 1919, Thomas O’Day procured from the author, one Elmer Harris, the manuscript for a theatrical production, in which he agreed to star defendant Trixie Friganza at a stipulated salary of $500 per week and twenty-five per cent of the profits. 0 ’Day resided in San Francisco, where this contract was entered into and signed 'by him, while Miss Friganza was to reside and conduct rehearsals at Los Angeles. The decedent did not make any of the alleged purchases in person, and had no charge account at Los…