In almost every litigation webinar we have hosted, and in many of our previous breach of contract posts (the general breakdown of that claim can be found here), we have emphasized the importance of keeping agreements in writing to protect yourself from potential or lengthy agreements Litigation across the board. Unfortunately, we still have some potential customers who just don’t have this principle (be it due to previous industry standards or otherwise) and are in a difficult position. In California, “joint censuses” could be helpful here. The general census is a general plea that seeks to reclaim funds without specifying the nature of the claim. In today’s publication, we’re going to discuss the four most common points that could save your breach of contract claims.
- Had and received money
The common count of “money had and received” can be taken “wherever one person has received money that belongs to another and that … should be returned in justice and justice. … The plaintiff’s right to reclaim is subject to the principles of fairness, even though it is a legal action. “Mains v. City Title Ins. Co. (1949) 34 Cal.2d 580, 586. Under Instruction No. 370 of the CACI Jury, the plaintiff must demonstrate that the defendant received money “to be used for the benefit of the plaintiff,” but not the money used for the benefit of the plaintiff, and that the defendant did not give the plaintiff the money. “
- Goods and services provided
The common counting of “goods and services provided” encompasses the concept of the Quantum Meruit. In order to demonstrate the existence of a contract, the claimant must demonstrate that the circumstances were such that the services were provided under mutual understanding or with the expectation that compensation should be provided for them. “The basic idea behind Quantum Meruit is the law’s aversion to unjust enrichment. If you have received a benefit that you may not be entitled to keep, you should take the injured party back to you [or her] previous position by returning the thing or its equivalent in money. “EJ Franks Construction, Inc. v Sahota (2014) 226 Cal.App.4th1123, 1127-1128. The claimant’s recovery in Quantum Meruit is the fair value of the services provided. “In order to claim fair value of services under a quantum meruit theory, a plaintiff must demonstrate both that he or she acted for services based on an express or implied request by the defendant, and that the services were provided Services were intended and has helped the defendant. “Ochs v PacifiCare of California (2004) 115 Cal.App.4th 782, 794; Instruction No. 371 of the CACI Jury.
- Open a book account
“A book account can form the basis of a joint census claim” … if it contains a statement of the debits and credits of the transactions involved that is complete enough to provide evidence that can reasonably be used to determine the amount of the claimant is due to Interstate Group Administrators, Inc. v Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708. Instruction 372 of the CACI Jury requires the plaintiff to determine that the plaintiff and defendant are financially Transactions with each other The plaintiff kept an account for the debits and credits connected with these transactions which the defendant owed the plaintiff on the account, as well as for the amount of money.
Specifically, “a book account is defined … as a detailed explanation that is kept in a book [written or electronic]in the form of direct debits and credits resulting from a contract or a fiduciary relationship. “It is of course necessary that the book show who is being charged. It must also be indicated in whose favor the prosecution is being brought. This can be demonstrated by presenting the book in the plaintiff’s possession and identifying it as the book in which he kept the account between him and the debtor. An open book account can consist of a single entry reflecting the establishment of an account between the parties and can include charges if there are no credits. Borrowed money is the right subject of an open book account. “Joslin v. Gertz (1957) 155Cal.App.2d 62, 65-66.
- Account specified
“The essential elements of a specified account are: (1) past transactions between the parties that establish the debtor-creditor relationship; (2) an express or tacit agreement between the parties regarding the amount owed by the debtor to the obligee; (3) an express or tacit commitment by the debtor to pay the amount due. “Zinn v Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600; Instruction of the CACI Jury 373. The account indicated as being counted together is special in that it can be set up passively: the obligee can present a statement to the debtor if the debtor does not object to the statement within a reasonable period of time , The law implies his approval that the account is correct. “If the account is implicitly agreed, it becomes a new contract for the balance agreed by the parties.
While these are helpful when cornered, these general counts are still not ideal claims for a number of reasons (but mostly because they may limit your remedial action). Our number one recommendation to memorize everything and to keep your documents in order remains unchanged. If you’re interested in learning more about how to protect yourself from potential litigation, these previous webinars should also help: