Godfrey v. Hughes , 114 Ark. 312 ( 1914 )

Smith, J.,

(after stating the facts). Appellees insist that the note represents an account stated and that it can not be impeached, as appellants do not allege, nor claim, that its execution was procured by fraud or is the result of any mistake, and this was evidently the view of the trial judge in directing a.verdict in favor of appellees.

(1-2) It is true that an account stated may be impeached only for fraud or mistake, but we do not think this was an account stated. According to this excluded evidence, the parties were not undertaking to settle the balance due after taking into account the various debits and credits, but only the amount due appellees, the correctness of which amount is not now questioned. This note does not evidence an account stated, because it is the consent of the debtor that the balance claimed is and shall be treated as the true net balance of indebtedness between the parties that imparts the character of an account stated to an account, and that consent is lacking here. . The rule is stated in 1 Cyc. 366, as follows:

“An account may be the foundation of an account stated, though it does not cover all the dealings between the parties. But the rule that an account may become a stated account without including all the dealings between the parties is confined to an account on one side, and while a stated account in such a case would be evidence of the correctness of the demand on the one side, it would not be conclusive against a demand on the other side, for, to support a plea of a stated account so as to conclude the parties in relation to all the dealings between them, the accounting must be shown to have been final. Hence, the binding force of an account stated will not be given to the mere furnishing of an account or other transaction which was not with a view to asserting a claim, establishing a balance due, or finally adjusting the matters of account between the parties.”

A substantially similar statement of the rule is found in volume 1, Haling Case Law, 210, where it is said:

“In ether words, the balance found need not be complete and final, for in the last analysis an account stated is nothing more than an agreement between the parties as to the items considered. If the agreement is that the balance found is final and complete, it constitutes an account stated as to every item; but, upon the other hand, a court can not limit the right parties have to make such lawful contracts as they choose, .and, therefore, to agree as to certain items and leave open for adjustment or adjudication other items. The burden is on the person claiming that certain items were not included in an account stated to substantiate his claim. It is open for the parties to show in what regard the account .stated was made, and that certain matters were excluded from consideration, and as to those matters they are not concluded by the account .stated. And though the authorities are conflicting, the better rule seems to .be that the giving of a note by a debtor to his creditor, nothing else appearing, is prima facie evidence of an accounting and settlement of all demands between the parties.” Numerous cases are cited in support of the text which we have quoted. See also Glasscock v. Rosengrant, 55 Ark. 376-382.

(3) It follows, therefore, that the court erred in refusing to submit the issue as to whether or not the note was given in full .settlement of all transactions between the parties, and for that error the judgment of the court below is reversed and the cause will he remanded for a new trial.