H. Russell Taylor's Fire Prevention Service, Inc. v. Coca Cola Bottling Corporation

99 Cal. App. 3d 711 (1979)


D entered into an oral agreement with P to periodically fill some of its own cylinders with carbon dioxide and supply them to D's bottling plant for use as fire extinguishers. P would furnish carbon dioxide at 16 cents per pound and D would pay a $1 service charge for each tank filled in lieu of demurrage. No demurrage was ever charged by D for any outstanding cylinder. P's services were terminated on September 23, 1971. P demanded the return of several hundred cylinders in D's possession. At the time of trial, 246 were still missing. P sent statements of demurrage charges to D for $ 8,494.08. D owed $12,436.08 in late charges as of July 8, 1975. P's complaint prayed for relief based on the following four causes of action: (1) account stated; (2) open book account; (3) indebitatus assumpsit; and (4) money had and received. The trial court found that D's failure to return the cylinders was a taking and detaining of goods and chattels. It determined that P waived the conversion claim and elected to treat the action as a purchase and sale of the cylinders. Under this implied-in-law sale, the court applied the four-year statute of limitations.  The court also made findings which supported its conclusion that P was not entitled to recover on account stated or open book account theories. Everyone appealed. D on the statute of limitations and P from the first and second causes of action which the trial court refused.