Mayberry v. Cook

Citations

• 121 Cal. 588
• 54 P. 95
• 1898 Cal. LEXIS 958

Syllabus

<p>Account Stated—Implied Agreement.—The agreement between the parties to an account stated, that all the items therein are true, need not be express, but may be implied from circumstances, such as the sending of the account from one to the other, who makes no objection thereto within a reasonable time.</p> <p>Id.—Account between Commission Merchants and Consignors—Statute of Limitations.—Where the date of an account rendered between commission merchants and a consignor of merchandise to them, and of the last item on either side in the open account between them, was less than two years before the commencement of the action, no part of the account is barred by the statute of limitations, whether the account be deemed stated or open.</p> <p>Id.—Discharge . in Insolvency—Fiduciary Capacity.—Commission merchants who receive goods consigned to them on commission to be sold, and the proceeds, less commission, to be transmitted to the consignor, and who sell the goods and fail to transmit the money, create a debt in a fiduciary capacity, which is not barred by their discharge in insolvency; and the statement of the account between the parties does not so change the fiduciary quality or character of the indebtedness as to take it out of the exception declared in the Insolvent Act.</p>