the former. Hence the complaint must be, treated as one alleging an indebtedness upon an open book account, unaided by the allegations as to labor performed and material

furnished.

602, providing that documents, etc., shall constitute part of the record and that the oral testimony, etc., may be made a part of the record by filing a statement of facts, bill of exceptions, or transcript of the court reporter's the portions of the record to be brought to the notes, and paragraphs 1256 and 1257, relative to Supreme Court, where the record on appeal showed the order on replevin and return thereto, and the duly authenticated transcript of the reporter's notes from which it appeared that plaintiff had possession of the property, the error in a judgment for plaintiff for the value of the property could be revised.

Under Civ. Code 1913, par. 1616, where plaintiff at the time of the entry of final judgment in replevin had possession of the property by virtue of an order for its taking under paracoming bond, plaintiff was not entitled to elect graph 1605, defendant having given no forthto take judgment for the value of the property, but was only entitled to a judgment for possession.

It is conceded by appellee that a cause of action cannot be based solely upon an open book account; that before entries therein can be held binding it must appear that they were made in compliance with a contract between the parties for work done or material furnished. An open book account, unaided by a showing as to its foundation, unlike a stated account properly 2. Replevin 106-Plaintiff in possession not pleaded, cannot form the basis of an ac- entitled to elect to take money judgment. tion, for there has been no agreement between the parties as to the correct amount due. It is necessary, therefore, in pleading a good cause of action on an indebtedness upon an open book account, to state what the account grew out of, or how it arose, for it is merely evidence of the doing of certain acts in pursuance of a contract, but not of the contract itself, which must be proven otherwise before the account is admissible. An action does not lie for an indebtedness upon an open book account, but does "for work and labor done or performed or materials furnished in connection therewith." 1 C. J. 674. Inasmuch, therefore, as the complaint does not disclose whether the indebtedness upon the open book account originated in the performance of a contract between defendant and plaintiff's assignor, W. M. Winn, or merely existed upon the books without a proper basis therefor, the demurrer should have been sustained.

We re

The defect in the complaint, however, can be easily cured by amendment, and the probability of a retrial renders unnecessary the discussion of the other errors assigned, for, if they are really meritorious, the ground for them may be avoided at that time. gret a reversal, inasmuch as the facts are few, and a correction of the error complained of may not affect the result upon a new trial, but the objection to the complaint was good and properly raised; hence the court cannot do otherwise than sustain it.

The judgment is reversed, and the case remanded, with directions to sustain the de

murrers.

ROSS, C. J., and FLANIGAN, J., concur.

(23 Ariz. 271)

3. Replevin 109 Plaintiff's unauthorized election to take money judgment does not vest defendant with title.

Under Civ. Code 1913, par. 1618, providing, relative to replevin, that an election by either party to take a money judgment vests title to the property in the other party, plaintiff's election to take a money judgment did not vest title in defendants, where plaintiff was in possession of the property and had no right to elect to take a money judgment.

4, Replevin 96-Assessment of value of property when plaintiff in possession held surplusage and not to vitiate the verdict.

Where the jury found for plaintiff in replevin and plaintiff at the time had possession of the property, it was unnecessary for the jury to assess its value, and such assessment should be treated as surplusage not vitiating the verdict or preventing a proper judgment in favor of plaintiff for possession of the property.

Appeal from Superior Court, Cochise County; Alfred C. Lockwood, Judge.

Action by the Southwest Lumber Company against J. H. Smith and another. From Reversed and remanded, with instructions. a judgment for plaintiff, defendants appeal.

J. T. Kingsbury, of Tombstone, for appellants.

O. Gibson, of Tombstone, for appellee.

FLANIGAN, J. Appellee, as plaintiff, commenced this action against appellants, as deSMITH et al. v. SOUTHWEST LUMBER CO. fendants, to replevy certain mining machin

(No. 1916.)

ery. The complaint was filed December 19, 1919, and prayed judgment for the recovery of possession of the property, or in case delivery thereof could not be had, alternative judgment for the alleged value thereof, with damages for its detention.

At the instance of plaintiff, and in ac

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(203 P.)

cordance with the provisions of sections 1604 | in a case shall constitute a part of the recet seq., Civil Code, on replevin, an order was ord thereof," and, further, that "either party issued to the sheriff requiring him to take to a suit may make the oral testimony and the property from the defendants and deliv- proceedings in a case, together with such er it to the plaintiff. Thereafter and on rulings, orders or other action of the court January 23, 1920, the sheriff made and filed in the case, as do not appear otherwise of in the court below return of his proceedings record, a part of the record in the case by under the order, to the effect that in ac- filing therein either a statement of facts, cordance therewith he had on December 30, a bill of exceptions, or a transcript of the 1919, taken the property into his possession court reporter's notes, as provided hereinfrom the defendant Keystone Copper Mining after." On any appeal the record consists Company, and that the defendants having of such papers or portions of the record in omitted to require a return of said property, the court below as may be specified and deemor to file any forthcoming bond for such re- ed necessary by appellant to present the covery within the time allowed by law, he questions involved on such appeal, with such had delivered the property to the plaintiff, other papers or portions of such record as and exhibited the receipt of plaintiff's at- are specified and deemed necessary by appeltorney to that effect, as a part of the return. lee to the consideration of the appeal; or The issues made by the complaint and an- of such papers or portions of the record as swer of the defendant thereto were tried may be stipulated upon between the parties before a jury, who, after the cause was sub- (section 1256, C. C.); or may consist of a mitted to them, and with a view to obtaining statement of the case and the proceedings further instructions as to the matter of their therein, agreed to by the parties as sufficient verdict, returned into court, at which time and approved by the judge of the trial court the judge by consent of counsel gave them (section 1257). such instructions, based upon the concession and agreement of counsel that the property was in plaintiff's possession, and the jury were told to assess the value of the property, whether their verdict should be for plaintiff or defendants. The verdict was returned May 13, 1920, and (omitting formal parts) reads:

"We, the jury, duly impaneled and sworn in the above-entitled action, upon our oaths do find for the plaintiff, and assess the value of said property at $1,587.50 and damages for its taking and detention at $-."

On May 29, 1920, on motion of plaintiff's counsel, judgment was rendered in favor of the plaintiff for the value of the property as assessed by the jury upon the election of plaintiff in open court "to receive in lieu of the property the value of the property as fixed by the jury in the verdict aforesaid." [1] The defendants, without moving for a new trial, have appealed directly from this judgment, and assign its rendition as error because plaintiff was not entitled to retain the property, and at the same time have judgment for its value. Plaintiff, insisting on its right to the judgment, not questioning the existence of these facts, contends that as on this appeal from the judgment alone the order of replevin and return thereof have not been made a part of the record by being incorporated in a bill of exceptions, or statement of facts, we are not authorized to consider the assignment of error so made, because the error alleged is not shown by the judgment roll, which under section 565 of the Civil Code consists in this case only of the complaint, answer, and copy of the judgment. This contention cannot be sustained. By section 602, Civil Code, it is provided that "every document and other object filed 203 P.-22

The facts of the case to which we have adverted appear from the record on appeal in this case, which includes the order on replevin and return thereto, and the duly authenticated transcript of the reporter's notes, and we hold therefore that on this appeal from the judgment we are required to revise the judgment for error apparent upon such record. We think that the very clear language of our statutes renders this conclusion a necessary one and that there is nothing in the cases heretofore decided by this court which-on the facts, at least-under present statutory

provision conflicts with this holding.

[2, 3] Considering the record thus presented, it appears that notwithstanding the plaintiff at the time of the entry of final judgment had possession of the property sued for in the replevin suit, by virtue of an order for its taking made pursuant to section 1605, Civil Code, it asked for and obtained a judgment on the verdict for the assessed value of such property in the sum of $1,587.50.

The provisions of our statute on replevin (supra) do not authorize the rendition of such judgment, for an election by the plaintiff to take either the property, or the value thereof, is only given when at the time of judgment for plaintiff the defendant is in possession of the property under a forthcoming bond given by defendant whereby he retained its possession (section 1616, C. C.), and no such bond was given here.

[4] All that plaintiff was entitled to in the circumstances was to have the judgment for the possession of the property that it prayed for, and not a money judgment. It had no right of election, and it must necessarily follow that the title to the property in plaintiff's possession did not vest in the defend

ants as provided by section 1618, Civil Code, FLANIGAN, J. The appellee, Mariana which effects that result only where a valid Bernal, suing by her guardian ad litem, havelection is made by the plaintiff. As the ing recovered a judgment against one Manuel judgment could not operate to vest defend- | Miranda for the sum of $3,000 and costs, for ants with title to the property, it must also follow that if the judgment is upheld the defendants will lose not only the property itself, but also stand obligated to pay the value thereof to plaintiff. And as it was unnecessary for the jury to have assessed the value of the property, such assessment should have been treated as surplusage, in no wise vitiating the verdict.

The substantial error is in the judgment itself, and such being the case we perceive no reason why a proper judgment should not be rendered based upon the proceedings had prior to its rendition, and our order will therefore be that the judgment be reversed and the cause remanded to the lower court, with instructions to enter such judgment for plaintiff; or, at its discretion, for good cause shown, not now apparent to us on the record, to order a new trial of the cause, or to take

injuries sustained by her because of the negligent operation of an automobile by Miranda, brought suit for the payment of said judgment against the appellant, Arizona Mutual Auto Insurance Company, basing her cause of action against the company on the terms of a certain policy of indemnity issued by it to Miranda, as the owner and user of said car in carrying passengers for hire. The court below rendered judgment in favor of appellee, and on this appeal the question for determination is whether the admitted facts support the judgment.

By the policy so issued the company agreed to indemnify the assured Miranda "against loss by reason of the liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered or other proceedings not inconsistent herewith. alleged to have been suffered while this policy is in force by any person or persons not employed by the assured or not at the time

ROSS, C. J., and MCALISTER, J., concur, members of his family, by reason of the own

(23 Ariz. 276)

ership, maintenance or use" of said automobile by Miranda while carrying passengers for hire; and also agreed to defend in the name and on behalf of the assured any suits,

ARIZONA MUT. AUTO INS. CO. v. BERNAL. even if groundless, brought against the as

(No. 1912.)

(Supreme Court of Arizona. Jan. 13, 1922.)

sured to recover damages on account of such happenings, and to pay by way of indemnification only not more than the sum of $5,000 "for loss from accident resulting in bodily in

Insurance 311(1)-Passenger could recover from insurer for injuries in collision not-juries to, or in the death of, one person,” withstanding his failure to give the notice of accident required by policy.

Where policy insuring automobile driver engaged in business of carrying passengers for hire against liability required insured to give insurer written notice of accident, and provided in indorsement on policy that it should inure to the benefit of persons damaged, "regardless of any of the conditions of this policy," a passenger, who recovered a judgment against insured for injuries sustained in accident, could recover the amount thereof from the insurer, notwithstanding insured's failure to give the prescribed notice or failure of passenger herself to give insurer such notice.

such engagements on the part of the company being made, however, subject to the following conditions:

"A. The assured, upon occurrence of an accident shall give immediate written notice thereof, with the fullest information obtainable at the time, to the company's home office at Phonix, Arizona, or to its duly authorized agent. If a claim is made on account of such accident, the assured shall give like notice thereof. If, thereafter, any suit is brought against the assured to enforce such a claim, the assured shall immediately forward to the company every summons or other process served on him. The company reserves the right to settle any claim or suit. Whenever requested by the company

Appeal from Superior Court, Pima County; the assured shall aid in the effecting settleSamuel L. Pattee, Judge.

Sult by Mariana Bernal, an infant, by Jesus Bernal, her guardian ad litem, against the Arizona Mutual Auto Insurance Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Richard R. Sloan, C. R. Holton, and Greig Scott, all of Phoenix, for appellant.

George O. Hilzinger and Edwin F. Jones, both of Tucson, for appellee.

ments, securing information and evidence, the attendance of witnesses, and in prosecuting appeals, and shall at all times render to the company all co-operation and assistance within his power.

"C. No action shall lie against the company to recover under any of the agreements herein contained, unless brought by the assured perhim in satisfaction of claim or liability imposed sonally to recover money actually expended by by due process of law, resulting from injuries actually caused by reason of the ownership, maintenance, and use of said automobiles. ***"

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(203 P.)

The policy was issued with an "indorse- a final judgment rendered against the asment" reading as follows:

"Indorsement.

"In consideration of the premium at which this policy is written and in further consideration of the acceptance by the Arizona Corporation Commission of this policy as a compliance with orders No. - it is understood and

agreed that, regardless of any of the conditions of this policy, same shall cover passengers as well as other coverage, and shall inure to the benefit of any or all persons suffering loss or damage, and suit may be brought thereon in any court of competent jurisdiction within the state, by any person, firm, association or corporation suffering any such loss or damage, if final judgment is rendered against the assured by reason of any loss or claim covered by this policy, the company shall pay said judgment up to the limits expressed in the policy direct to the plaintiff securing said judgment, or the legal holder thereof, upon the demand of said plaintiff, or holder thereof, whether the assured be or be not financially responsible in

the amount of said judgment and that this policy may not be canceled by either party except that written notice of the same shall have been previously given for at least ten days prior to the cancellation of such policy.

"In all other respects, the terms, limits and conditions of this policy remain unchanged."

sured "up to the limits of the policy direct to the plaintiff securing said judgment," i. e., a judgment secured in a suit against the assured by a person suffering a loss or damage which the company undertakes to indemnify. It does not appear possible to conceive a doubt as to the meaning of this language, or to add anything to its clearness by exposition. The only terms of the indorsement which might be supposed to qualify its effect are in the concluding sentence, “In all other respects, the terms, limits and conditions of this policy remain unchanged." This sentence merely evidences the intention that every obligation and right created by the contract and existing between the assured and the indemnity company should, except as modified by the indorsement, remain unaffected, and is but the expression by way of emphasis of a rule for the interpretation of the policy which would be applicable even

were the sentence omitted. The other terms, limits, and conditions of the policy, including those concerning its existence and continuation, the subject-matter and limits of the risk, the rights and obligations of the assured, and the indemnitor inter se, were obviously intended to be governed by the policy It appeared that no notice was given by itself irrespective of the indorsement, exceptany person to the company of the occurrence ing only in that regard the provisions conof the accident or injury to appellee within cerning the time which must elapse before the time required by condition A, and the cancellation of the policy could be had after judgment is sought to be reversed solely for notice, and the express inclusion of injuries such omission; the existence of the remain- to passengers in the risks covered by the ing facts precedent to the liability of the policy; these additional provisions being apcompany not being questioned. The con-parently for the benefit of the third persons tentions of appellant are substantially thatThe company is not liable to any person until it is shown that the assured has performed that condition of the policy, and that "if the assured failed to give the prescribed notice, the injured person, in order to put himself in a position to claim the benefits arising out of the contract, should himself notify the insurance company of the accident."

The agreements evidenced by the policy are basically: First, an undertaking by the company to indemnify the assured against loss in certain contingencies; and, second, an undertaking by the company to pay such persons as the appellee up to the limits expressed in the policy and in cases within its terms the amount of any final judgment obtained by them against the assured. The legal right of appellee to have the judgment paid by the company exists only under the indorsement, for, in no other part of the policy is there any stipulation binding the company to respond to any claim made by appellee, or conferring upon her any cause of action that she would not otherwise have. Now, the language of the indorsement is that "regardless of any of the conditions of this policy" the company shall upon demand pay

brought by the indorsement into contractual relation with the parties as beneficiaries under the policy.

As neither the terms of the indorsement nor the policy in any other of its provisions requires the giving of any notice to the company of an accident, by a person injured, nor requires in terms such person to see to the performance of any such act by the assured himself, it cannot therefore be said that the giving of such notice is a condition precedent to recovery by any such person; it being sufficient that such person has complied with the terms and conditions of the indorsement which sets forth the sole requirements to be fulfilled antecedent to the liability of the company to such person. By the provisions of the indorsement the only notice required to be given by such person is a demand on the company to pay a final judgment already obtained against the assured.

We conclude that a cause of action against appellant existed in this case when appellee obtained her final judgment against Miranda for the injury she sustained during the life of the policy and concededly covered by its terms, and that the obligation to pay such judgment, within the limits of the policy,

directly to her, arose when she demanded its | 4. Election of remedies 3 (1)-Remedies not payment by the company, and that appellee inconsistent, but merely cumulative, may be was under no obligation or duty to give any notice herself, or see to the giving of any notice, required by the conditions of the policy from the assured; and that the failure of the assured to comply with this condition affected only his own rights against the company, and could not prejudice the rights of appellee.

5. Appeal and error 1039 (6)-Ruling that defense was not a proper counterclaim harmless.

For these reasons the judgment must be terclaim for tort held harmless, where the cause Ruling that defendant could not prove counof action could be set up as a counterclaim if tort were waived, but it was not a good coun

ROSS, C. J., and MCALISTER, J., concur. terclaim when treated as a contract by reason

ROBISON v. ROBISON et al. (No. 3704.) Action by Parker Robison, as administra(Supreme Court of Utah. Dec. 15, 1921.) tor of the estate of Almon Robison, deceased, against Proctor H. Robison and another, in 4. Executors and administrators 431 (2)—which named defendant filed counterclaims. Statute requiring claims "arising on con- Judgment for plaintiff, and named defendtracts" to be presented for allowance before ant appeals. Remanded, with directions. action inapplicable to claims for damages from torts.

FRICK, J. The plaintiff, as the administrator of the estate of Almon Robison, deceased, commenced this action in the district [Ed. Note.-For other definitions, see Words court of Millard county, Utah, to foreclose a and Phrases, First and Second Series, Arise-mortgage executed and delivered to said AlArising.] mon Robison in his lifetime by the defend

2. Set-off and counterclaim 15, 22(2)—ant Proctor H. Robison and by May M. TrimCause of action which may be treated either in tort or contract may be so treated as to right to counterclaim.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes