Crawford v. Hutchinson , 38 Or. 578 ( 1901 )

Mr. Chief Justice Bean,

after stating the facts, delivered the opinion of the court.

1. We have had occasion in several instances to consider the question of an account stated, and the doctrine of our decisions is that an account rendered and delivered to the debtor, exhibiting the creditor’s demand, becomes an account stated, unless objected to within a reasonable time, and that what constitutes a reasonable time is a question of law for the court when the facts are admitted, or are clear and undisputed: Truman v. Owens, 17 Or. 523 (21 Pac. 665); Holmes v. Page, 19 Or. 232 (23 Pac. 961); Fleischner v. Kubli, 20 Or. 328 (25 Pac. 1086); Howell v. Johnsson, 38 Or. - (64 Pac. 659). This rule was formerly applied to accounts between merchants only, but in most of the states of this country it has been extended to embrace every kind of transaction in which the relation of debtor or creditor is involved: Fleischner v. Kubli, 20 Or. 328 (25 Pac. 1086); 22 Cent. Law J. 76; Spellman v. Muehlfeld (N. Y. App.), 59 N. E. 817. It is clear, therefore, that'by reason of the silent acquiescence of the defendants the account rendered by the plaintiff to them became a stated account, which can be opened only for fraud, error, or mistake, unless the fact that it did not include the hay furnished by the defendants would prevent it from becoming such an account.

2. It is insisted that an account stated exists properly only where the accounts on both sides have been examined, and the balance has been admitted as a true balance between the parties, or where a statement has been rendered, including all the mutual accounts between them within the knowledge of the creditor, and has not been objected to within a reasonable time. But the failure to include a counterclaim arising out of some independent transaction does not necessarily prevent an account rendered from becoming an account stated as to everything embodied therein, if no objection is made thereto within a reasonable time. Mr. Justice Clopton says that “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 counterclaims which are not deducted” : Ware v. Manning, 86 Ala. 238 (5 South. 682). And in Filer v. Peebles, 8 N. H. 226, it was held that, where an account was stated by the parties, and an amount agreed upon as due plaintiff within certain dates, but the defendants claimed something on a prior account, there is a sufficient stating of account for the amount named, subject only to the right of the defendant to set off any prior claim not included therein. Again, in White v. Whiting, 8 Daly, 23, it was held that, where an account has been stated between, two persons, embracing all the items of a particular transaction, but the debtor refuses to1 pay unless the creditor executes a release embracing other transactions as to1 which there is some dispute, the account is so far conclusive against the' debtor in an action to recover the balance as to cast upon him the burden of showing error or mistake therein. The rule upon this point seems to- be that, where the correctness of the account presented is admitted, either expressly or by failure to object within a reasonable time, it will amount to an account stated as to everything included therein, although the person so acknowledging its accuracy may have an offset thereto' arising out of some independent transaction. But, while one part of a transaction is left open for further adjustment or litigation, another part cannot become an account stated. The unconsidered demand or offset must be an independent matter, having no connection with or relation to the items which are resolved into a sum certain by the express or implied agreement of the parties: Weigel v. Hartman Steel Co., 51 N. J. Law, 446 (20 Atl. 67). The memorandum in regard to the hay furnished had no reference to- plaintiff’s professional employment, and did not, therefore, in our opinion, prevent the statement rendered from becoming an account stated.

3. As no offset was pleaded, there was no error in directing a verdict for the plaintiff, and the judgment is affirmed. . Affirmed.