CACI No. 372. Common Count: Open Book Account

Judicial Council of California Civil Jury Instructions (2020 edition)

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372.Common Count: Open Book Account
A book account is a written record of the credits and debts between
parties [to a contract/in a fiduciary relationship]. [The contract may be
oral, in writing, or implied by the parties’ words and conduct.] A book
account is “open” if entries can be added to it from time to time.
[Name of plaintiff] claims that there was an open book account in which
financial transactions between the parties were recorded and that [name
of defendant] owes [him/her/nonbinary pronoun/it] money on the account.
To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] and [name of defendant] had financial
transactions with each other;
2. That [name of plaintiff], in the regular course of business, kept [a
written/an electronic] account of the debits and credits involved
in the transactions;
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; Revised November 2019
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.
Include the second sentence in the opening paragraph if the account is based on a
contract rather than a fiduciary relationship. It is the contract that may be oral or
implied; the book account must be in writing. (See Code Civ. Proc., § 337a [book
account must be kept in a reasonably permanent form]; Joslin v. Gertz (1957) 155
Cal.App.2d 62, 65-66 [317 P.2d 155] [book account is a detailed statement kept in a
book].)
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
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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 a book
account.” (Joslin, supra, 155 Cal.App.2d at pp. 65-66, 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.)
• “A book account is a detailed statement of debit/credit transactions kept by a
creditor in the regular course of business, and in a reasonably permanent manner.
In one sense, an open-book account is an account with one or more items
unsettled. However, even if an account is technically settled, the parties may still
have an open-book account, if they anticipate possible future transactions
between them.” (Reigelsperger v. Siller (2007) 40 Cal.4th 574, 579, fn. 5 [53
Cal.Rptr.3d 887, 150 P.3d 764], original italics, internal citation 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
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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
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
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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 (5th ed. 2008) Pleading, § 561
1 California 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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