Able, Inc. v. Kuzara ( 1990 )

NO. 89-241
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1990
ABLE, I N C . , a Montana c o r p . ,
p l a i n t i f f and Respondent,
-vs-
JOSEPH K . KUZARA,
D e f e n d a n t and. A p p e l l a n t .
APPEAL FROM: ~ i s t r i c t ourt of t h e Fourteenth J u d i c i a l ~ i s t r i c t ,
C
I n and f o r t h e County o f M u s s e l s h e l l ,
The H o n o r a b l e Roy ~ o d e g h i e r o , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Joseph K . K u z a r a , P r o S e , Roundup, Montana
For Respondent :
Charles E. S n y d e r , ~ i l l i n g s ,Montana
S u b m i t t e d on ~ r i e f s : O c t . 25, 1989
Decided: J a n u a r y 2 9 , 1990
4
Filed:
Clerk
Justice John C. Sheehy delivered the Opinion of the Court.
Joseph K. Kuzara, appearing without counsel, appeals from a
judgment entered in the District Court, Fourteenth Judicial
District, Musselshell County, holding Kuzara liable to Able, Inc.,
in the total sum of $3,169.27 on an account stated. We affirm the
judgment of the District Court.
The sole issue raised on appeal is whether the District Court
applied the correct legal principles in deciding this matter on the
basis of an account stated.
Able, Inc., a Montana corporation, operates an insurance
agency business in Musselshell County. Prior to December, 1980,
Able, Inc. had sold and issued insurance policies covering building
liability, fire and extended coverage and glass breakage coverage
to one Jerry Ellis, who was the owner of a building located in
Roundup, Montana. Kuzara, too, had done business with Able, Inc.,
having negotiated the purchase of a farm and ranch liability policy
through Able, Inc.
In February, 1981, Kuzara purchased the Roundup building from
Ellis while the insurance policies were still in effect. The
insurance policies were transferred to Kuzara as the named insured
and the renewal premiums were billed by Able, Inc. to Kuzarals
account. Able, Inc. renewed the same insurance policies in
Kuzarals name and in effect extended credit to Kuzara for the
premiums when Able, Inc. itself paid the insurance companies for
the renewal premiums.
The District Court found that the renewals were made by Able,
Inc. prior to any receipt of any requests for cancellation by
Kuzara; that he made no surrender of the policies nor gave any
written notice of policy cancellation until December 12, 1982, when
one of the policies was terminated and again on July 20, 1983, when
another policy was terminated. Able sent billing statements to
Kuzara regularly on a monthly basis from December 28, 1981 until
May 23, 1984, the statements indicating the amount of premium due
and a finance charge of 13% per month or an annual rate of 18% on
the unpaid balances. Kuzara received and regularly filed all the
statements and correspondence received by the plaintiff without
taking any further action. The District Court found that Kuzara
knew that Able had continued his policies in effect as was
demonstrated by the monthly billing statements which Kuzara had
admitted receiving. Nonetheless, Kuzara on demand refused to pay
and reimburse Able for the amounts claimed by Able.
An account stated was clearly established in this case. The
basic ingredient of an account stated is an agreement between the
parties that the items of account and the balance struck are
correct, and an express or implied agreement for the payment of the
balance. Implied agreement for the payment of the balance may be
presumed where there is a course of dealings, an antecedent
indebtedness, and retention of a statement of the account for an
unreasonable length of time without objection. Johnson v. Tindall
(1981), 195 Mont. 165, 635 P.2d 266; Mattson v. Julian (1984), 209
Mont. 48, 678 P.2d 654; Montana Seeds, Inc. v. Holliday (1978),
178 Mont. 119, 582 P.2d 1223. The District Court correctly
concluded that an account stated existed between the parties in
this case.
On appeal, Kuzara argues that agreements for the loan and
repayment of money should be in writing, and that Able was in
violation of the Montana Retail Sales Finance Act ( § 31-1-231, MCA)
and the Insurance Premium Finance Statutes ( 5 33-14-301, MCA). As
this Court pointed out in Montana Seeds, Inc. v. Holliday, supra,
582 P. 2d at 1226, where the defendant raised the defense of statute
of frauds for the first time on appeal, a defense not raised in the
pleadings nor otherwise raised before the District Court cannot be
maintained on appeal.
Accordingly, the judgment of the District Court is affirmed.
& g,& h
Justice
We Concur: