CACI No. 373. Common Count: Account Stated

Judicial Council of California Civil Jury Instructions (2020 edition)

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373.Common Count: Account Stated
An account stated is an agreement between the parties, based on prior
transactions between them establishing a debtor-creditor relationship,
that a particular amount is due and owing from the debtor to the
creditor. The agreement may be oral, in writing, or implied from the
parties’ words and conduct.
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun/it] money on an account stated. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] owed [name of plaintiff] money from
previous financial transactions;
2. That [name of plaintiff] and [name of defendant], by words or
conduct, agreed that the amount that [name of plaintiff] claimed to
be due from [name of defendant] was the correct amount owed;
3. That [name of defendant], by words or conduct, promised to pay
the stated amount to [name of plaintiff];
4. That [name of defendant] has not paid [name of plaintiff] [any/all]
of the amount owed under this account; and
5. The amount of money [name of defendant] owes [name of plaintiff].
New December 2005; Revised November 2019
Sources and Authority
• “ ‘An account stated is an agreement, based on prior transactions between the
parties, that the items of an account are true and that the balance struck is due
and owing. [Citation.] To be an account stated, “it must appear that at the time
of the statement an indebtedness from one party to the other existed, that a
balance was then struck and agreed to be the correct sum owing from the debtor
to the creditor, and that the debtor expressly or impliedly promised to pay to the
creditor the amount thus determined to be owing.” [Citation.]’ ” (Leighton v.
Forster (2017) 8 Cal.App.5th 467, 491 [213 Cal.Rptr.3d 899].)
• “The essential elements of an account stated are: (1) previous transactions
between the parties establishing the relationship of debtor and creditor; (2) an
agreement between the parties, express or implied, on the amount due from the
debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the
amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600 [76
Cal.Rptr. 663], internal citations omitted.)
• “The agreement of the parties necessary to establish an account stated need not
be express and frequently is implied from the circumstances. In the usual
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situation, it comes about by the creditor rendering a statement of the account to
the debtor. If the debtor fails to object to the statement within a reasonable time,
the law implies his agreement that the account is correct as rendered.” (Zinn,
supra, 271 Cal.App.2d at p. 600, internal citations omitted.)
• “An account stated is an agreement, based on the prior transactions between the
parties, that the items of the account are true and that the balance struck is due
and owing from one party to another. When the account is assented to, ‘ “it
becomes a new contract. An action on it is not founded upon the original items,
but upon the balance agreed to by the parties. . . .” Inquiry may not be had into
those matters at all. It is upon the new contract by and under which the parties
have adjusted their differences and reached an agreement.’ ” (Gleason v. Klamer
(1980) 103 Cal.App.3d 782, 786-787 [163 Cal.Rptr. 483], internal citations
omitted.)
• “To be an account stated, ‘it must appear that at the time of the statement an
indebtedness from one party to the other existed, that a balance was then struck
and agreed to be the correct sum owing from the debtor to the creditor, and that
the debtor expressly or impliedly promised to pay to the creditor the amount
thus determined to be owing.’ The agreement necessary to establish an account
stated need not be express and is frequently implied from the circumstances.
When a statement is rendered to a debtor and no reply is made in a reasonable
time, the law implies an agreement that the account is correct as rendered.
Actions on accounts stated frequently arise from a series of transactions which
also constitute an open book account. However, an account stated may be found
in a variety of commercial situations. The acknowledgement of a debt consisting
of a single item may form the basis of a stated account. The key element in
every context is agreement on the final balance due.” (Maggio, Inc. v. Neal
(1987) 196 Cal.App.3d 745, 752-753 [241 Cal.Rptr. 883], internal citations
omitted.)
• “An account stated need not be submitted by the creditor to the debtor. A
statement expressing the debtor’s assent and acknowledging the agreed amount
of the debt to the creditor equally establishes an account stated.” (Truestone, Inc.
v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 726 [209 Cal.Rptr.
757], internal citations omitted.)
• “ ‘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.)
• “The account stated may be attacked only by proof of ‘fraud, duress, mistake, or
other grounds cognizable in equity for the avoidance of an instrument.’ The
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defendant ‘will not be heard to answer when action is brought upon the account
stated that the claim or demand was unjust, or invalid.’ ” (Gleason, supra, 103
Cal.App.3d at p. 787, internal citations omitted.)
• “An account stated need not cover all the dealings or claims between the parties.
There may be a partial settlement and account stated as to some of the
transactions.” (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation
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 (5th ed. 2008) Pleading, § 561
1 Witkin, Summary of California Law (11th ed. 2017) Contracts, §§ 1003, 1004
1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open
Accounts, §§ 8.10, 8.40-8.46 (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
CONTRACTS CACI No. 373
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