tory, and the consequent interruption of freight communication with the United States, the defendant was able to return the shook in the month of December, 1916, but failed to do so. (It is not alleged that the return could not have been made sooner.) It was alleged that on account of defendant's failure to return the shook in December, 1916, plaintiff charged said materials to defendant's account in January, 1917, and thereupon demanded payment from the defendant. As a second cause of action defendant alleged that on the 11th day of January, 1917, the defendant "was and still is indebted" to the plaintiff in the sum sued for "on an account for goods, wares, and merchandise * sold to defendant and to be paid for at San Francisco." It is not alleged when the goods were sold or when the indebtedness accrued. The third cause of action is based upon an account stated, alleged to have been made in the month of September, 1916, at San Francisco, between plaintiff and defendant for the sum of $1,232.94. (It will be noted that in this cause of action the plaintiff depends upon a statement of an account made in September, 1916, for the same item which in the previous causes of action the complaint alleged were charged to the defendant in January, 1917, the same date at which it was charged the defendant became indebted to the plaintiff. It should also be noted that in the original complaint it was alleged that plaintiff's first knowledge of the loss of the shook was on or about October, 1916; and that, in the amended complaint, it was alleged that the charge was made against defendant because of his failure to return the shook in December, 1916.) Defendant's demurrer to the amended complaint having been overruled, it filed its answer denying the allegations of the complaint relating to the loan of the shook in May, 1914, and specifically pleaded the statute of limitations to the three causes of action. The answer also denied that a charge for the materials was made against the defendant in January, 1917, that the defendant was indebted to the plaintiff in any sum in January, 1917, or at any other time, and in answer to the third cause of action specifically denied that in the month of September, 1916, or at any other time, an account was stated between the parties, or that the defendant agreed to pay plaintiff any sum for the shook in question.

In findings directed specifically to the first cause of action, the court found that in the month of May, 1914, defendant operated a packing house at Los Mochis; that Bosworth was the general agent in Mexico for the defendant; that in the month of May plaintiff was the owner of the shook in question, which Bosworth borrowed from plaintiff, and which defendant used for its own purposes. It also found that during this time there existed at Los Mochis a custom by

which packers borrowed box materials from each other, with the understanding that they should return or replace said loan when able to do so from supplies received from the United States, and that, in the event of their inability to do so, they should make a return in kind or the value of the same would be charged to the borrowing party. It also found that defendant could have returned the shook to the plaintiff in the month of December, 1916; that it failed to do so, and that on January 11, 1917, plaintiff charged defendant's account the reasonable value thereof, amounting to $1,232.94. In findings directed specifically to the third cause of action, the court found that in the month of September, 1916, at San Francisco, a settlement of account was reached between plaintiff and defendant whereby defendant was charged with the sum of $1,232.94; and, as the findings of fact appearing in the transcript are segregated and designated as covering the first cause of action and the third cause of action separately, and as no findings are shown to have been made covering the second cause of action, we assume that that cause was abandoned, or that it at least was not carried into the judgment. Upon the findings above noted judgment was entered for $1,232.94, with interest from December 2, 1916, and from this judgment defendant appeals.

The facts of the case material to the opinion are that in May, 1914, Bosworth, acting as general agent for the appellant, employed Scally to take charge of appellant's interest in the packing of tomatoes in Los Mochis under an express authorization that, if the packing boxes left by Bosworth in appellant's packing house were inadequate, Scally should purchase what was needed from the United Sugar Company, a corporation having box material in the same town, Scally took charge of appellant's interest, but he was not at any time during the period in question the agent or representative of the respondent. In fact, the respondent did not have any agent at Los Mochis during the time in question. This all appears from the testimony of Scally, who was called by the respondent. His testimony also shows that during the month of May, 1914, he found that he was short of boxes necessary for the season, and, without any express authority from his employer, and without the knowledge or consent of the respondent, he sent an employee to the Los Mochis agricultural union, where respondent had stored a quantity of shook, and obtained from the custodian thereof some of the respondent's materials, which were then made into boxes and used for the shipment of appellant's tomatoes. He did not notify the respondent that he had taken these materials until September, 1916, at which time he also sent a notice through the mail to Bosworth, who was not then an employee of the appellant.

without his knowledge or consent. As to the first cause of action, therefore, it is apparent that respondent failed to make any proof of the essential allegations of a loan in accordance with the local custom.

[4] The evidence relating to the third cause of action shows what purports to be an account stated between Scally personally and the appellant in the month of September, 1916. The appellant rejected the account, and refused to consider it, unless Scally would present the approval of Bosworth. Bosworth refused to approve the account, and nothing further was done in regard thereto between September, 1916, and February, 1918, when the respondent herein addressed a letter to the appellant inclosing a claim for $906.31. This statement might have ripened into a statement of account between the parties, if it had been supported by proof, but no attempt was made to do so. The same may be said as to the statement of account in the sum of $1,232.94, dated August 10, 1918. There is a marked difference between the three statements which were presented. The one presented by Scally personally in September, 1916, made no charge of any nature. It merely contained an itemized list of the quantity of pieces claimed to have been loaned. Neither the cost nor the value thereof was stated. The statement of February, 1918, in the total sum of $906.31, listed the materials furnished at 12 cents and 14 cents, and added an additional claim of $123.90 to cover freight charges at the rate of 50 cents. The statement of August 10, 1918, charged the same quantity of material at the rate of 2 cents instead of at the rate of 12 and 14 cents, and included the item of freight charges estimated at $.556 instead of at the rate of 50 cents. It is quite evident, therefore, that even the respondent has not treated any one of these statements as a statement of account between the parties.

[5, 6] The essential element of a statement of an account is an agreement between the parties that the items contained therein are correct and a promise, either express or implied, on the part of the debtor to pay the amount thus found to be correct. When an account is thus stated, a new contract is created into which all prior negotiations are merged (Gardner v. Watson, 170 Cal. 570, 150 Pac. 994), and the creditor must recover upon the account as stated or not at all

(Duerr v. Sloan, 40 Cal. App. 653, 655, 181 Pac. 407). Here the respondent sued upon an account claimed to have been stated in September, 1916, and recovered judgment on a statement made in August, 1918, which was essentially different from the former account.

[7, 8] In addition to this the evidence is without conflict that the appellant did not at any time agree to the correctness of the account of September, 1916, but that at all times after its presentation had insisted that the account was incorrect, and that it would give it no further consideration until Scally had obtained Bosworth's approval of the items of the account. Where reliance is placed upon an implied assent that the items of an account are correct, such assent cannot be inferred from a specific objection or refusal to state the account.

"An account stated presupposes an absolute acknowledgment or admission of a certain sum due, or an adjustment of accounts between the parties, the striking of a balance, and 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 R. C. L. p. 211, § 9; 1 Cal. Juris. p. 195, § 52.

Thus, where the party to whom an ac count was presented replied that he expected to receive funds at an early date, and that he would then endeavor to adjust the account agreeably, it was held that no account was stated. Craig v. Lee, 36 Cal. App. 335, 337, 171 Pac. 1089.

[9] Finally, if we are to assume that the account of August 10, 1918, upon which the judgment was rendered was an account stated, it was barred by the statute of limitations. If any liability attached to the appellant, it arose out of the conversion of the materials by Scally while acting as appellant's agent. The period of limitations to enforce such a liability expired before the respondent had presented any claim to the appellant. This feature of the case is controlled by the well-established rule found in Auzerais v. Naglee, 74 Cal. 60, 67, 15 Pac. 371, 373, where the court say:

"An open account already barred by the statute of limitations cannot be relieved from the bar of such statute by an oral statement of such account, for the reason that under our Code (Code Civ. Proc. § 360) no acknowledgment or promise is sufficient evidence of a new or continuing contract by which to take the case out of the operation of the statute, unless the same is contained in some writing signed by the party to be charged thereby."

Judgment reversed.

We concur: LANGDON, P. J.; STURTEVANT, J.

MUEHLEBACH v. PASO ROBLES SPRINGS

HOTEL. (Civ. 4657.)

ST. SURE, J. This is an action by a guest against an innkeeper to recover damages in the sum of $2,100, the alleged value of jewelry deposited for safe-keeping, stolen by inn

1. Innkeepers

(11)-Innkeeper liable under statute as depositary for hire. By Civ. Code, §§ 1859, 1860, as amended by St. 1895, p. 49, the strict rule of the common law that an innkeeper was an insurer of the property of his guest was changed to that of a depositary for hire. 2. Bailment

14(1)-Depositary for hire must use ordinary care for preservation of the thing deposited.

A depositary for hire under Civ. Code, 1852, must use at least ordinary care for the preservation of the thing deposited.

3. Innkeepers 11(4)-Hotel keeper liable for servant's theft of valuables deposited in safe.

Where a guest at a hotel deposited valuables in a hotel safe which were stolen by a servant who was charged with safeguarding the same and who had access thereto, the hotel keeper being a bailee or depositary for hire was liable therefor under the rule that, if a duty of the master be violated, he is liable whether he or his servant was guilty of the breach, even though the servant acted contrary to instructions without his master's consent, fraudulently or criminally. 4. Principal and agent 159(1)-Rule as to principal's liability to third persons for negligence of agent stated.

A principal is liable to third persons, following Civ. Code, § 2338, not only for the negligence of its agents in the transaction of the business of the agency, but likewise for the torts or other wrongful acts committed by such agent in and as a part of the transaction of such business.

5. Innkeepers 11(4)-Statute does not exempt innkeeper from liability for wrongs of

servant.

Civ. Code, § 1860, relating to the liability of an innkeeper as a bailee or depositary for hire, does not exempt an innkeeper from liability to third persons for his own wrongs or the wrongs of his servant committed in and as a part of the transaction of the business of the principal.

Appeal from Superior Court, City and County of San Francisco; Daniel C. Deasy, Judge.

Action by Carl A. Muehlebach against the Paso Robles Springs Hotel, a corporation. Judgment for defendant, and plaintiff appeals. Reversed.

with the care and safeguarding of the property.

The complaint contains three counts: The first charges defendant with conversion; the second charges defendant with employing a dishonest clerk who wrongfully converted the property to his own use; and the third charges that defendant undertook to keep the property safely, guaranteed the honesty of the servant, and was guilty of gross negligence in the premises. The answer denied these charges. Trial was had before the superior court without a jury. The trial court found, in part, as follows:

That on or about the first day of March, 1920, plaintiff was the owner of and entitled to the possession of certain personal property (jewelry described).

That on or about March 1, 1920, plaintiff was a guest of said defendant at the hotel conducted and operated by it at Paso Robles, Cal.; that in a conspicuous place in the room which he occupied and to which he was assigned in said hotel by the said defendant, was posted by the said defendant a sign in the words following, to wit: "The management of this hotel has provided a safe for the protection of guests and will not be responsible for any valuables unless deposited therein," and that pursuant to said notice plaintiff delivered said personal property to said defendant through the clerk employed for that purpose for safe-keeping to be deposited in said safe, and the said clerk thereupon so deposited said personal property in said safe.

That said defendant employed one Charles E. Ingersoll to whom it intrusted, among other duties, the duty of safeguarding personal property deposited in said safe; that said employee was given the key to said safe and had access thereto and to the personal property placed in the same; that it was the duty of the said employee to safeguard said personal property by keeping same in said safe, and to deliver the same to the plaintiff upon demand; that said personal property was, on the third day of March, 1920, taken from said safe by Charles E. Ingersoll, the said clerk employed by said defendant, and placed in charge of said safe with access thereto, who thereupon wrongfully converted the said personal property to his own use and absconded therewith; that the whereabouts of the said Charles E. Ingersoll is now and ever since said March 3, 1920, unknown to this defendant; that said property has never been returned to this defendant and this defend