P. J. MORAN, Appellant,
BABBITT BROTHERS TRADING COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Coconino. Henry C. Kelly, Judge. Judgment affirmed.
Messrs. Maycook & Lester, of Los Angeles, California, and Mr. Henry C. McQuatters, of Flagstaff, Arizona, for Appellant.
Messrs. Wilson, Compton & Wilson and Mr. James E. Babbitt, for Appellee.
[58 Ariz. 163] PER CURIAM.
The plaintiff in his second amended complaint sues the defendant for the sum of $46,951.43, set out in three counts, as follows: (1) For money had and received for and on account of plaintiff between January 1, 1920, and July 1, 1935; (2) for deposits made with defendant between said dates by divers persons to plaintiff's credit and subject to plaintiff's order; (3) for commissions as an insurance agent insuring defendant's properties and the properties of its affiliates over the period between said dates.
In the last count plaintiff shows that during all the time from January 1, 1920, to July 1, 1935, he was an employee and officer of the defendant trading company; that during said time he acted as an insurance agent and caused many policies of insurance to be issued covering the property of the defendant and its [58 Ariz. 164] affiliates, and that he had never been paid any commissions, which amounted to the sum of $46,951.43.
This claimed indebtedness is met in defendant's answer by general denial. Defendant also pleads that it and plaintiff had three stated accounts during said time: One September 30, 1924, showing a balance of $14,958.27 due from plaintiff to defendant, upon which plaintiff agreed to pay $12,500, whereupon defendant charged off its books the balance of $2,458.27; one April 9, 1929, showing a balance due from plaintiff to defendant of $19,965.32, for which plaintiff deeded to defendant a house and lot in Flagstaff, which was allowed as a credit of $8,000, and he executed to defendant his note for $6,708.07 and defendant thereupon charged off its books the balance of $5,257.25; and one December 31, 1934, showing a balance of $10,279.51 due from plaintiff to defendant, for which plaintiff executed to defendant his note dated December 31, 1934, for $5,139.75, payable in one year with interest at 6% payable at maturity, and defendant thereupon charged off its books the balance of $5,139.76.
Defendant also pleads as a set-off certain items accruing more than three years before the commencement of the action by plaintiff. It also pleads the three-year statute of limitations against all items alleged in the complaint to have accrued prior to December 13, 1932, under section 2060, Revised Code of 1928, section 29-203, Arizona Code 1939.
Defendant cross-complained for the note of December 31, 1934, for $5,139.75, interest at 6% and attorney's fees of 10%.
The court found that during the time of plaintiff's employment by defendant there were various transactions between them, separate from the insurance business, by which plaintiff became indebted to defendant and various settlements were made between them, and that plaintiff made no claim for commissions on [58 Ariz. 165] insurance until after the termination of his employment, about May 1, 1935; that plaintiff "during the course of these transactions... made oral statements to sundry persons that the accruing agent's commissions belonged to the defendant"; that defendant claimed the insurance commissions as its own property and, in addition thereto, set out various counterclaims as for money loaned to plaintiff, as evidenced by his note, and for goods, wares and merchandise purchased by plaintiff from defendant during the time of his employment.
The court further found that defendant paid all premiums to insurers by check and that the agent's commissions, from year to year, were transferred to defendant's account and absorbed in its general as sets; that the method of bookkeeping, by designating the account as the "P. J. Moran Agent, Fire Account" and later as "Insurance Commission Account," did not constitute the total of these separate transactions an open account between plaintiff and defendant and that "the plaintiff and defendant did not treat them as an open account."
The court found as a fact that plaintiff was entitled to the agent's commissions sued for but that the claim was barred by limitation, except that portion accruing at least three years before the filing of the complaint, on December 13, 1935, amounting to $5,922.30, with interest at 6% per annum from July 23, 1935; that the defendant holds plaintiff's note for the sum of $5,139.75, dated December 31, 1934, bearing interest at 6% per annum and providing for attorney's fees of 10%. For the difference between these sums, or $64.19, judgment was entered for plaintiff, from which he appeals.
Plaintiff claims the judgment is wrong for two reasons: One that the court's finding shows that the account between plaintiff and defendant was not affected [58 Ariz. 166] by the three-year limitation because items thereof were incurred within three years immediately prior to the commencement of the action; and the other that the defendant had waived the ...