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Holmes v. Graves

Supreme Court of Arizona

November 12, 1957

George R. HOLMES and Mrs. George R. Holmes, Appellants,
v.
Kenneth H. GRAVES, dba Lincoln Acres Crocery, Appellee.

Page 355

[83 Ariz. 175] Moore & Moore, Phoenix, for appellants.

William C. Fields, Phoenix, for appellee.

STRUCKMEYER, Justice.

Appellants George R. Holmes and his wife appeal from a judgment entered against them in favor of Kenneth H. Graves. There is no dispute as to the facts. Appellee is the proprietor of a grocery store in Phoenix, Arizona. Appellants ran a charge account with him for a period of more than four years prior to the institution of this action, but we are here concerned with only the last four and one-half months. The only record kept by appellee of charge accounts was on sales pads containing duplicate pages, each charge customer having a separate pad. When appellants or members of their family purchased groceries, the price of the item or total price of the items purchased was noted in [83 Ariz. 176] the sales pad with a carbon between the duplicate pages. The total from the previous entries was brought forward on each new page, and the amount of the new sales when entered added to the previous total. After each page was filled, or nearly so, one of the duplicate pages was taken out of the book and given to the customer and when a sales pad was exhausted, another with the customer's name written on it was started. It should be noted that customarily, but not always, the items purchased were totalled on a cash register, and only the total amount of the particular purchase entered in the sales pad without any reference to the nature of the goods. The cash register tape was then delivered to the customer.

The following is a typical example of one of the pages taken from the sales pad:

       "Sold by _______________ Date           9-20-54                  
       Name              Holmes                                         
       Address ___________________________________________________________
       Reg. No.                     Amt. Recd.                  Acct. Fwd.

                                                                 $448.73
                                                                     .75
                                                                    2.32
                                                                  451.80
                                                                     .64
                                                                  452.44"
       ___________________________________________________________________

Appellee brought this action on an open account for the sum of $763.92, alleging that appellants failed and refused to pay for the groceries and supplies delivered, although a demand had been made therefor. After the complaint was filed, appellants served upon appellee seven interrogatories. The only interrogatory here pertinent is No. 1, as follows:

'What goods and merchandise did you sell to the defendants between June 1, 1954 and November 15, 1954?

Page 356

Attach an itemized list of same to your answer.'

The appellee, in answer to this interrogatory, replied:

'The goods and merchandise sold consisted of groceries, meats, vegetables, and cigarettes. Attached is itemized list of sales made to defendant.'

The attached list was no more than a statement of the matters contained in the sales pads except for the additional statement[83 Ariz. 177] that the items were 'miscellaneous' groceries.

Appellants at various times prior to trial moved for the following: (1) an order requiring appellee to file a bill of particulars specifying the items of merchandise sold to appellants, (2) an order requiring appellee to furnish an itemized list of merchandise, (3) an order requiring appellee to furnish appellants with a further account showing the items claimed to have been sold to the appellants, and (4) an order precluding appellee from introducing any evidence concerning the said items. All of the motions were denied.

In this state, in an action on an open account, a defendant may demand the items of account in writing. By Rule 12(f), 16 A.R.S. Rules of Civl Procedure, it is provided:

'The party pleading need not state the items of an account alleged in the pleading, but if demand is made in writing for the items of account, the adverse party shall file and serve a copy of the account within ten days after demand, or be precluded from giving evidence thereof. The court may order a ...


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