[Civ. No. 1973. First Appellate District.-February 20, 1918.]

J. EARLY CRAIG, Appellant, v. JAMES A. LEE et al., Respondents.

ACCOUNT STATED-ORAL ACKNOWLEDGMENT OF DEBT-RUNNING OF STATUTE OF LIMITATIONS.-Where the acknowledgment of a debt is not in writing, the statute begins to run against the account stated from the date of the settlement, and an action must be brought within two years after such settlement.

ID. CORRESPONDENCE CONCERNING LEGAL SERVICES INSUFFICIENT PROOF OF ACCOUNT STATED.-A stated account for legal services is not shown by the fact that in answer to letters inclosing bills for such letters, the debtor made reply that he expected to receive some money at an early date, and that when funds were available he would endeavor to "adjust" the account.

APPEAL from a judgment of the Superior Court of San Mateo County. George H. Buck, Judge.

The facts are stated in the opinion of the court.

M. H. Hernan, and John A. Hoey, for Appellant.

N. E. Wretman, and Houghton & Houghton, for Respondents.

KERRIGAN, J.-This is an appeal from a judgment rendered in favor of the defendants in an action brought by plaintiff to recover the sum of $650, alleged to be due from them upon an account stated for legal services.

On April 22, 1912, plaintiff sent to the defendants by mail a statement of his account showing a balance due from them of $650. The letter or statement was not answered. On August 14, 1913, the plaintiff again wrote to the defendants in reference to the account, but this letter was not received by them and was returned to the plaintiff. On the 18th of that month the plaintiff wrote another letter to the defendants, being a copy of the letter of the 14th, and inclosed with the letter a bill for $650, together with a promissory note for that amount, payable in ninety days, which he requested the defendants to execute. On August 22d this letter was answered by the defendant James A. Lee to the effect that he

expected to receive some money at an early date, and that when funds were available he would endeavor to adjust the account. Respecting the request for a note the letter states: "The time is so short that I do not deem it necessary to issue any note at this time." There were two other letters from the plaintiff to the defendants concerning the amount claimed. to be due from them, but they have no bearing upon the points to be decided. Later on in the same year plaintiff again wrote to the defendants asking for a settlement of his bill of $650, to which the defendants shortly thereafter replied stating that while they were anxious to pay all their just debts, they at that time were without funds, but that in the near future they expected to receive some money, in which case they would endeavor "to adjust the account forthwith." In addition to these letters there was a conversation between the plaintiff and the defendants, in which the latter said that within a certain number of days they would perhaps be able to "settle up." It is conceded, as of course it must be, that this conversation did not create an account stated.

(1) As to the letter of April 22, 1912, written by plaintiff to the defendants inclosing his bill for $650, assuming that because it remained unanswered it became an account stated on that date, still the statute of limitations had run against it when the present action was commenced. Where the acknowledgment of a debt is not in writing, the statute begins to run against the account stated from the date of the settlement, and an action must be brought within two years after such settlement. (Code Civ. Proc., sec. 339, subd. 1; Auzerais v. Naglee, 74 Cal. 60, [15 Pac. 371].)

(2) From the other correspondence we think it cannot be held that an account was stated between the parties. "An account stated presupposes an absolute acknowledgment or admission of a certain sum due or adjustment of accounts between the parties, the striking of a balance, or an assent, express or implied, to the correctness of the balance. If the acknowledgment or admission is qualified and not absolute, or if there is but an admission that something is due without specifying how much, there is no account stated, nor does an account stated exist if there is but a partial settlement of accounts without arriving at a balance, or if there is a dissent from the balance as struck." (1 Corpus Juris, p. 695, par. 2871; Coffee v. Williams, 103 Cal. 556, [37 Pac. 504].)

From the letters of August and November, 1913, we think there was no meeting of minds respecting the amount which was to be paid to plaintiff for his services; and the language of Lee's letter of August 22d, as well as that contained in the letter of both defendants of November 26th, negatives any construction or presumption of a promise to pay the full amount of the bill. According to the language of the letter of August 22d, the account rendered was to be "adjusted agreeably" to the parties interested; and according to the language of the letter of November 26th, the defendants would endeavor to adjust the account when they received certain money which they expected shortly.

The word "adjust," as defined in volume 1 of Words and Phrases, page 194, means "to settle or bring about a satisfactory state, so the parties will agree in a result, as to adjust accounts." When losses under policies of insurance are adjusted, the amount of the loss is ascertained and determined. (Miller v. Consolidated etc., 113 Iowa, 211, [84 N. W. 1049]; Ruthven v. American Fire Ins. Co., 102 Iowa, 550, [71 N. W. 374].)

Excepting from consideration for the reason already stated the letter of April 22, 1912, and defendant's failure to reply to the same, it would appear from the other correspondence that they never intended to pay in full the amount of plaintiff's claim, but expected at some time, perhaps in the near future, to agreeably adjust or settle the account. There was, therefore, no account stated between them, which would leave plaintiff's claim barred by the statute as pleaded.

The judgment is affirmed.

Lennon, P. J., and Beasly, J., pro tem., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court April 17, 1918.

86 Cal. App.-22

[Civ. No. 1772. Third Appellate District.-February 20, 1918.]

O. B. LEFURGEY et al., Respondents, v. J. A. PRENTICE et al., Appellants.

PLACE OF TRIAL-CONTRACT FOR SALE OF CORPORATE STOCK-RECOVERY OF POSSESSION OF CORPORATE PROPERTY UPON BREACH.-An action by the owner of a large majority of the capital stock of a mining corporation to compel the return to him of the possession of the real property of the corporation which was received in connection with a sale of stock from him, upon default of defendant in the payment of the price, and to have a mortgage lien wrongfully placed upon the property canceled, is a local action, and triable, under section 392, subdivision 1, of the Code of Civil Procedure, in the county where the property is situated.

APPEAL from an order of the Superior Court of Tuolumne County denying a change of place of trial. G. W. Nicol, Judge.

The facts are stated in the opinion of the court.

Clarke, Prentice & Kinsey, Bradley V. Sargent, and Vincent Surr, for Appellants.

J. P. O'Brien, and H. M. Anthony, for Respondents.

CHIPMAN, P. J.-This is an appeal from an order denying defendants' motion for a change in the place of trial from Tuolumne County to the city and county of San Francisco. It is not disputed that at the commencement of the action defendants Prentice and Duke had their residence in said city and county, where also was the principal place of business of the defendant corporation; the defendant Craig resided in Alameda County and the defendant Kinsey resided in San Matco County, the two latter consenting that the cause might be transferred to the city and county of San Francisco. The question presented is whether the action was personal or local in its nature as involving real property. The complaint was filed in July, 1914; the motion to change the place of trial was denied on September 28, 1914, and the transcript on appeal was filed October 1, 1914. No briefs were filed in the case until after its transfer to this court in November, appel

lants' brief having been filed November 20, 1917, and respondents,' January 14, 1918.

The following facts alleged in the complaint will perhaps be sufficient to indicate the character of the action: The defendant corporation was, at the commencement of the action, the owner of certain mining property in Tuolumne County and plaintiff Lefurgey was then the owner of a large majority of its capital stock, and at the time of the execution of the agreement hereinafter referred to controlled its board of directors, and by virtue of such ownership and control had the management and control of the business and property of the corporation; on February 1, 1913, Lefurgey entered into an agreement with defendant Prentice by which the former agreed to sell to the latter two hundred and forty thousand shares of his stock, and to deliver possession of the mining properties of defendant company to defendant Prentice, and to cause four out of the five directors of the corporation controlled by Lefurgey to resign and to elect in their place four other directors to be nominated by Prentice, thereby Lefurgey surrendering control of the property to Prentice. It was also agreed that Prentice should have the right to work, operate, and develop the properties and to extract and remove the minerals therefrom, provided all work was done in a good and minerlike manner, and was to be done at Prentice's sole cost and expense, and he also agreed to keep the premises and property free and clear of all liens and encumbrances. The agreement also fixed the purchase price to be paid by Prentice and the times and manner of payment, and that Prentice would arrange with other stockholders to pay them their proportion of minerals extracted from the mining property. The agreement also provided that on Prentice's failure to pay the purchase price or any part thereof when it became due and payable and he should fail to keep or perform any of the conditions of the agreement, the agreement should thereupon terminate and end, and that Prentice should immediately deliver to Lefurgey the possession of the property which he obtained under said agreement from Lefurgey and also would procure the resignation of the directors nominated and controlled by Prentice, who had theretofore been elected in place of those controlled by Lefurgey. It was also alleged in the complaint that Lefurgey delivered possession of the property to Prentice and caused four direc