California Civil Jury Instructions (CACI) (2017)

372. Common Count: Open Book Account

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372.Common Count: Open Book Account
[Name of plaintiff] claims that [name of defendant] owes [him/her/it]
money on an open book account. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] and [name of defendant] had (a) financial
transaction(s);
2. That [name of plaintiff] kept an account of the debits and credits
involved in the transaction(s);
3. That [name of defendant] owes [name of plaintiff] money on the
account; and
4. The amount of money that [name of defendant] owes [name of
plaintiff].
New December 2005
Directions for Use
The instructions in this series are not intended to cover all available common
counts. Users may need to draft their own instructions or modify the CACI
instructions to fit the circumstances of the case.
Sources and Authority
• “ ‘A book account may be deemed to furnish the foundation for a suit in
assumpsit . . . only when it contains a statement of the debits and credits of the
transactions involved completely enough to supply evidence from which it can
be reasonably determined what amount is due to the claimant.’ . . . ‘The term
“account,” . . . clearly requires the recording of sufficient information regarding
the transaction involved in the suit, from which the debits and credits of the
respective parties may be determined, so as to permit the striking of a balance
to ascertain what sum, if any, is due to the claimant.’ ” (Robin v. Smith (1955)
132 Cal.App.2d 288, 291 [282 P.2d 135], internal citations omitted.)
• “A book account is defined . . . as ‘a detailed statement, kept in a book, in the
nature of debit and credit, arising out of contract or some fiduciary relation.’ It
is, of course, necessary for the book to show against whom the charges are
made. It must also be made to appear in whose favor the charges run. This may
be shown by the production of the book from the possession of the plaintiff and
his identification of it as the book in which he kept the account between him
and the debtor. An open book account may consist of a single entry reflecting
the establishment of an account between the parties, and may contain charges
alone if there are no credits to enter. Money loaned is the proper subject of an
open book account. Of course a mere private memorandum does not constitute
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a book account.” (Joslin v. Gertz (1957) 155 Cal.App.2d 62, 65–66 [317 P.2d
155], internal citations omitted.)
• “A book account may furnish the basis for an action on a common count
‘ “. . . when it contains a statement of the debits and credits of the transactions
involved completely enough to supply evidence from which it can be
reasonably determined what amount is due to the claimant.” ’ A book account is
described as ‘open’ when the debtor has made some payment on the account,
leaving a balance due.” (Interstate Group Administrators, Inc. v. Cravens,
Dargan & Co. (1985) 174 Cal.App.3d 700, 708 [220 Cal.Rptr. 250], internal
citations and footnote omitted.)
• “[T]he most important characteristic of a suit brought to recover a sum owing
on a book account is that the amount owed is determined by computing all of
the credits and debits entered in the book account.” (Interstate Group
Administrators, Inc., supra, 174 Cal.App.3d at p. 708.)
• “It is apparent that the mere entry of dates and payments of certain sums in the
credit column of a ledger or cash book under the name of a particular
individual, without further explanation regarding the transaction to which they
apply, may not be deemed to constitute a ‘book account’ upon which an action
in assumpsit may be founded.” (Tillson v. Peters (1940) 41 Cal.App.2d 671,
679 [107 P.2d 434].)
• “The law does not prescribe any standard of bookkeeping practice which all
must follow, regardless of the nature of the business of which the record is
kept. We think it makes no difference whether the account is kept in one book
or several so long as they are permanent records, and constitute a system of
bookkeeping as distinguished from mere private memoranda.” (Egan v. Bishop
(1935) 8 Cal.App.2d 119, 122 [47 P.2d 500].)
• “ ‘The common count is a general pleading which seeks recovery of money
without specifying the nature of the claim. . . . . Because of the uninformative
character of the complaint, it has been held that the typical answer, a general
denial, is sufficient to raise almost any kind of defense, including some which
ordinarily require special pleading.’ However, even where the plaintiff has
pleaded in the form of a common count, the defendant must raise in the answer
any new matter, that is, anything he or she relies on that is not put in issue by
the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715,
731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
• “Although such an action is one at law, it is governed by principles of equity. It
may be brought ‘wherever one person has received money which belongs to
another, and which “in equity and good conscience,” or in other words, in
justice and right, should be returned . . . . The plaintiff’s right to recover is
governed by principles of equity, although the action is one at law.’ ” (Mains v.
City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations
omitted.)
• “[S]ince the basic premise for pleading a common count . . . is that the person
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is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out.
Likewise excluded are damages for a breach of an express contract. The relief
is something in the nature of a constructive trust and . . . ‘one cannot be held
to be a constructive trustee of something he had not acquired.’ One must have
acquired some money which in equity and good conscience belongs to the
plaintiff or the defendant must be under a contract obligation with nothing
remaining to be performed except the payment of a sum certain in money.”
(Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14–15
[101 Cal.Rptr. 499], internal citations omitted.)
• “ ‘As Witkin states in his text, “[a] common count is proper whenever the
plaintiff claims a sum of money due, either as an indebtedness in a sum certain,
or for the reasonable value of services, goods, etc., furnished. It makes no
difference in such a case that the proof shows the original transaction to be an
express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for
money had and received can be based upon money paid by mistake, money
paid pursuant to a void contract, or a performance by one party of an express
contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th
950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
• “In the common law action of general assumpsit, it is customary to plead an
indebtedness using ‘common counts.’ In California, it has long been settled the
allegation of claims using common counts is good against special or general
demurrers. The only essential allegations of a common count are ‘(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations
omitted.)
• “A common count is not a specific cause of action, . . . rather, it is a simplified
form of pleading normally used to aver the existence of various forms of
monetary indebtedness, including that arising from an alleged duty to make
restitution under an assumpsit theory. When a common count is used as an
alternative way of seeking the same recovery demanded in a specific cause of
action, and is based on the same facts, the common count is demurrable if the
cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th
379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)
Secondary Sources
4 Witkin, California Procedure (4th ed. 1997) Pleading, § 522
1California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open
Accounts, §§ 8.20, 8.47 (Matthew Bender)
4 California Points and Authorities, Ch. 43, Common Counts and Bills of
Particulars, § 43.28 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or
Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions,
9.02, 9.15, 9.32
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