Merchants' Collection Agency v. Levi

This is an appeal from a judgment in favor of the defendant after his motion for a nonsuit had been granted. The facts are, therefore, undisputed and are these: On March 20, 1912, the defendant purchased from W. & J. Sloane two items of goods amounting to the sum of $325. They were not paid for, and the said sum was charged to the defendant on the books of W. & J. Sloane. Thereafter' the account was assigned to the plaintiff, who commenced action thereon on September 24, 1915. The defendant answered pleading the bar of the statute of limitations under section 339 of the Code of Civil Procedure. Upon the trial and upon proof of the foregoing facts the court granted the defendant’s motion for a nonsuit upon the ground pleaded in his answer.

The sole question presented for determination upon this appeal is as to whether the account sued upon is such an open book account as to bring the action upon it within the provisions of subdivision 2 of section 337 of-the Code of Civil Procedure. That section reads as follows:

It seems to us quite clear that- the only reasonable as well as the only proper grammatical construction to be placed upon the foregoing section of the code is that the…