CACI 372 Common Count: Open Book Account

California Civil Jury Instructions CACI

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].

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 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 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 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