Ware v. Manning , 86 Ala. 238 ( 1888 )

CLOPTON, J.

An account stated may be defined, in general terms, to be where an acccount is rendered, and a debt in a specified sum is acknowledged as due from one party to the other; or where parties, who have had previous transactions, agree upon a definite balance as due. It is not essential that there should be cross or mutual demands; but, when there are mutual demands, there must be an adjustment, a balance struck, and an assent to its correctness. The debtor and creditor must mutually agree as to the respective demands, and as to the balance ascertained on the final adjustment. An admission of an indebtedness in a specified sum is sufficient to constitute a claim an account stated. The admission may be implied from the circumstances. When an account is rendered showing the balance due, and the debtor retains it, without making objection within a reasonable time, his failure or omission to object is presumptively construed as an admission of its correctness. If the charges be all on one side, it is sufficient if there be an acknowledgment or admission, express or implied, of a certain sum due. And if the account of the plaintiff alone be stated showing the amount due, an^ acknowledgment or admission of such account is sufficient to constitute it an account stated, though the defendant may have counter claims which are not deducted. If the items of the account of the plaintiff were read over to the defendant, by the agent of the plaintiff, and he made no objection thereto, the claim became an account stated. — Nooe v. Garner, 70 Ala. 443; Burns v. Campbell, 71 Ala. 271; 62 Amer. Dec. 85; 2 Greenl. Ev., §§ 126, 127.

Tested by these rules, the general charge of the court, and the first and fourth charges given at the instance of plaintiff, may be regarded as asserting correct legal propositions. "When there is an admission of the correctness of the items composing the mutual demands — when the minds of both parties concur as to the allowance and disallowance of the various items — it is not requisite to the striking a balance that the one should be subtracted from the other: it is sufficient, if the balance becomes a matter of mere addition and subtraction. But the fourth charge, while asserting a correct general proposition, was, in view of the evidence, calculated to mislead, and no doubt did mislead the jury. To entitle a party to recover upon an account stated, he must show a fixed and certain sum to be due, though he need not precisely prove the sum laid in the complaint. In such case, the action is not founded on the original liability, but on the defendant’s admission that a definite sum is due in the nature of a new promise, express or implied. If the plaintiff would take his claim out of the bar of the statute of limitations as to an open account, he must prove a right to recover upon an account stated. The evidence of the witness, Bartlett, tended to show a final adjustment of the mutual demands, and a balance struck; but there is no evidence tending to show the amount of such balance. On the contrary, the witness stated, he could not recollect it, but made an entry of the calculation in plaintiff’s book of accounts. The,book was not produced to refresh the memory of the witness. On his evidence, the plaintiff was not entitled to recover on an account stated.

The third charge, requested by defendant, was taken verbatim from the opinion in Lockwood v. Thorne, 18 N. Y. 292, and as a general proposition, is correct; but, when referred to the evidence, it is calculated to mislead. The-jury would have understood the charge as meaning, that if the defendant objected to two items of the account, which his testimony tended to prove, the minds of the parties did not meet upon the allowance and disallowance of each item of the mutual account. "When only one or two items of an account, consisting of many, are objected to, this is regarded as an admission of the correctness of the items to which no objection is made, — Burns v. Campbell, supra.

An account stated, being an admission of tbe amount due, in the nature of a new promise to pay tbe same, does not operate to estop tbe defendant from impeaching it for mistake, unless, by some act, be- causes tbe plaintiff to alter bis position, to bis prejudice. Such admission only establishes, prima facie, tbe accuracy of tbe account, and dispenses with other proof of tbe correctness of tbe items. It is open to impeachment for fraud, mistake, or errors; tbe burden of proof being upon the party impeaching. — Lockwood v. Thorne, supra; Cook v. Bonitz, 4 Daly, 117. Tbe second charge requested by tbe defendant, should have been given.

Section 2627 of tbe Code of 1886 provides: “When there are mutual accounts between persons who are not merchants, tbe time must be computed from the date of tbe last item, unless tbe account is liquidated, and a balance struck.” Under tbe statutes, it has been held, that where there are mutual accounts, consisting of debits and credits, or reciprocal dealings between tbe parties, if a part of tbe account is not barred, none.is; but, if tbe accounts are not mutual, all tbe items being on one side, tbe entire' account is not taken out of tbe statute of limitations, because one or more of tbe items may not be barred.— Wilson v. Calvert, 18 Ala. 274; Todd v. Todd, 15 Ala. 743. There is no evidence showing mutual accounts, or an account consisting of debits and credits. Tbe cross demands of tbe defendant against tbe plaintiff consisted of three notes made in 1873, and payable sis months after date. So far as disclosed by tbe evidence, all tbe items of tbe account of tbe plaintiff were on one side, and tbe accounts are not taken out of tbe statute because of tbe notes.

These principles will be a sufficient guide on another trial.

Beversed and remanded.