Loventhal & Son v. Morris , 103 Ala. 332 ( 1893 )

COLEMAN, J.

Plaintiffs, Loventhal & Son, sued the defendant upon a stated account, to recover one hundred and fifty-five dollars. The complaint contains six counts, each counting for the same amount, and all upon a stated account, averring different times at which it is alleged the account was stated between the parties, the last being the 15th day of November, 1887. The account sued upon as a stated account appears in the statement of facts, and will show for itself.

An open account is one in which some item in the contract is left open, undetermined by the parties ; or where there are current dealings between the parties, and the account, because of contemplated future dealings is kept open. Whether the account consists of a single item, or many items, if the terms of the contract have not been adjusted, and agreed upon the demand is an open account. — Battle v. Reid, 68 Ala. 139 ; Gayle v. Johnston, 72 Ala. 254. An account becomes stated when a specified indebtedness is admitted to be correct. The mere admission of indebtedness alone will not render an account stated, but the admission must be the sum charged, and claimed to be due. The admission may be express, or it may arise by implication of law, as where an account is rendered to a debtor, and he retains it and makes no objection within a reasonable time. — Nooe v. Garner, 70 Ala. 443; Burns v. Campbell, 71 Ala. 271; Hirschfelder v. Levy, 69 Ala. 351; Rice v. Schloss, 90 Ala. 416; Lang don v. Roane, 6 Ala. 527; Ryan v. Gross, 48 Ala. 374; Goodwin v. Harrison, 6 Ala. 438.

These decisions of our own State are conclusive, that an account where there are debits and credits does not become stated, until there has been an adjustment, and an assent to the conclusion. In 1 Amer. & Eng. Encyc. of Law, page 110, it is said : “When two persons having had monetary transactions together close the account by agreeing to the balance, appearing to be due from one of them, this is called an account stated. It is of importance from the fact, that it operates as an admission of liability by the person against whom the balance appears ; or in the language of the common law, ‘the law implies that he against whom the balance appears, has engaged to pay it to the other, ’ ■ and’on this implied promise or admission an action may be brought. But if one of the parties does not agree to the balance, an action upon an account ' stated can not be maintained. ’ ’ And on page 113 : “To make an account stated, there must be a mutual agreement between the parties as to the allowance of their respective claims, and to establish such an account * * there must be proof of assent to the account as rendered.” In the case of Volkening v. DeGraaf, et. al., 81 New York 268, opinion by Folger, C. J., the principle is very fully and clearly stated. The court says,: “This-is strictly a cause of action on an account stated. To maintain the action as averred in the complaint the plaintiff must prove an account stated ; that and nothing else will support his allegations. An account stated is an account balanced and rendered, with an assent to the balance, express or implied ; so that the demand is essentially the same as if a promissory note had been given for the balance. (Bass v. Bass, 8 Pick. 187.) The emphatic words of a count upon an account stated were in former days ‘insimul computassent,’ that they, the plaintiff and defendant, accounted together, and the count went on to say, that on such accounting the defendant was found in arrears and indebted to the plaintiff in a sum named, and being so found in arrears, he undertook and promised to pay the same to the plaintiffs. (2 Chitty PI., 90 ; 1 lb. 358.)” When suit is upon an account stated, no proof is required to show the correctness of the items of the account. The recovery is upon the assent to the balance, and the subsequent agreement to pay that balance, as if upon a promissary note. As was said in Goodwin v. Harrison, 6 Ala. 438, supra, “An account is said to be open whenever there have been running or current dealings between the parties which are kept unclosed with the expectation of further transactions between them. In such a case it is obvious that the accounts are open.” Now compare the account sued upon, with the several counts of the complaint and apply the foregoing principles of law to the evidence.

There is no pretense that the account suéd upon as a stated account, or any other account at any time, showing a balance of $155, or any account whatever of debits and credits, showing any balance, was ever rendered to the defendant, much less one either expressly or impliedly assented to, and agreed to be paid by him. Balancing an account on one’s own books, done without the consent of the other party, is not a stated account in law. — 28 N. E. Rep.27. The argument based upon the proposition that the complaint does not aver any particular time when the account was stated, but only when the balance claimed was due, is too technical and strained. A complaint upon an account stated, which did not aver when it was stated, would be as defective as a suit upon a note which failed to aver when it was made. The suit itself is upon the express or implied promise to pay. The time when the promise to pay was made is not the essence of the promise, and it is not necessary to prove it strictly as laid, but it is the subsequent agreement to pay which sustains the cause of action. The suit is strictly ; upon a stated account, and it must be proven as laid to authorize a recovery. An indebtedness is not sufficient. The defendant was not called upon to plead or prove payment, to defeat a recovery, unless the case made by the complaint could be made out. The issue was whether an account showing a balance, had been rendered to the defendant and assented to by him. But independent of this, the defendant was not called upon to introduce evidence of payments which were admitted by the plaintiff to have been made and credited. It may be, as stated in Fitzpatrick v. Harris, 8 Ala. 32, that where an account is made out with debits and credits and presented to a debtor, he can not claim the credits without submitting to the debits, but this rule can not be so applied, as to prevent a debtor from showing certain charges of debits to be incorrect, without losing the benefit of the creditor’s evidence independent of the account, to the effect, that the debtor had made certain payments which were credited on the account. We do not see how this question, or the questions of the applications of payments, can arise upon the pleadings in this case. They are principles applicable to suits upon open accounts. So the principle declared in the case of McCulloch v. Judd, 20 Ala. 703, can not apply to the case at bar. In that case, the complaint counted upon an open account, and also on an account stated between the parties. To the plea of. the statute of limitation of three years, the plaintiff replied that the parties were mei’chants and the account between merchant and merchant. Of course the statute of limitations of three years was no answer to the count upon a stated account. It was only available so far as the plea applied to an open account, but the replication being general, the plaintiffs were required to make it good. This they failed to do. The evidence in fact showed that axi account had been stated between the parties and assented to by the defendant.

It is said that the defendant “does not deny that bills were rendei’ed for every item of mei’chandise charged, including those of January, February, April and June, 1887.” The defexidant’s testimony on this point is as follows: “The plaintiff never rendered to him any account against him for payment at any time or place, nor was he informed of the amount claimed of him by plaintiff until this suit was brought. * * Did not know what the account was; that he bought some goods in August, 1887, about $130 ; that the bill was correct; that he bought no goods in 1887 prior to August, that he got the bills every time, and never discovered any error in them. ” This language can not be construed into an admission that bills were rendered to him in January, February, April and June, 1887. He says he bought no goods prior to August. The statement, “that he got bills' every time,” certainly means that he got bills for thé goods that he bought, but can not be construed to be an admission that he had bills rendered to him for goods which he denies having purchased, and of which he was never informed. But as said before, all these questions are eliminated from this case. The suit is not upon the original consideration, for goods sold, which requires proof of the items, but upon a subsequent promise and agreement to pay a balance for an account rendered. This the plaintiff has wholly failed to show. The plaintiff does not pretend that he ever made out a bill for the item of $24, or sent any statement containing such a charge to the defendant, and on the trial testified to' its correctness as a proper charge, or item of the account, independent of any bill rendered or assent to such a charge, express or implied. We think it perfectly clear that the trial court did not err in holding that the plaintiff had failed to prove his case, and the judgment is affirmed.