Meridianal Co. v. Moeck , 121 Or. 133 ( 1927 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an action upon an account stated. The cause was tried to the court and a jury and a verdict rendered in favor of plaintiff. From a resulting judgment defendant appeals.

AFFIRMED. REHEARING DENIED. The plaintiff alleges in addition to its corporate character, in substance, that the defendants, George F. Moeck, Jr., and one Fred Trow, had transactions with each other relating to the purchase by the defendant of goods and merchandise from Trow, and about January 1, 1919, said Fred Trow rendered and delivered to defendant an account stated, covering said transactions, wherein and whereby said Trow stated and exhibited a demand of and upon the defendant for a balance of $594.64, then and there fixed as due and payable by defendant to said Trow.

The defendant assented to said account stated as correct, and agreed to pay the said balance to said Trow about the 1st of January, 1919. The defendant also assented in writing to said account, stated in the sum mentioned as being correct, about April 15, 1922, and June 3d, 1922, after demand upon him for payment thereof, and promised to pay the same.

That said Fred Trow died February 12, 1921, and after due probate and final settlement of his estate, the account stated and right of action thereon became in due course the property of Alice V. Trow, his widow, as heir and devisee. Before commencement of this action said Alice V. Trow assigned said account and right of action to plaintiff; that no part thereof has been paid.

The defendant first moved to make the complaint more definite and certain, and upon the motion being denied, demurred to the complaint upon the grounds, among others, that it did not state facts sufficient to constitute a cause of action; that said action stated in the complaint had not been commenced within the time limited by law. The court overruled the demurrer and the defendant answered denying the substance of the complaint and further alleged, "that said action has not been commenced within six years, the time limited by law, * * and that said purported cause of action stated in said amended complaint is barred by the provisions of Section 6, Olson's Oregon Laws." The new matter of the answer was put in issue by a reply.

At the close of the testimony, on behalf of the plaintiff, the defendant moved for a nonsuit and assigns the refusal to grant the same as error. The testimony, on behalf of plaintiff, tended to show that about January 1, 1919, Fred Trow, by his clerk and bookkeeper duly forwarded by mail to defendant George F. Moeck, Jr., a statement of the balance of his account of $594.64, and that thereafter other statements of the same matter were forwarded to the defendant in the same manner; that the defendant never objected or questioned the account and thereby assented to the same. That April 15, 1922, the defendant wrote a letter to the attorney who had the account stated in charge in answer to a letter in which the defendant stated: "I know there is due the Trow estate $594.64 and can only say I will do my best to take care of this as soon as possible." This letter was signed by defendant and received by the attorney. The jury was warranted in concluding that the words "take care of this," in the letter, meant that defendant would pay the account.

Apparently during the same year, the date not being proved, the defendant wrote a letter to the same attorney in reply to one received by defendant stating that he would do all he could to square the bill as soon as he could. The defendant in support of the demurrer to the complaint, invoked the rule laid down in the case of Foste v. Standard etc. Ins. Co., 26 Or. 449, 452 (38 P. 617), where the court said:

"The material allegations in an action on an account stated, are: (1) that plaintiff and defendant came to an accounting together. (2) That on such accounting defendant was found indebted to the plaintiff in a specified sum, (3) which defendant promised to pay, (4) and has not paid."

Tested by this rule, although the complaint is in a different language, we think that in substance it conforms thereto, and that after the defendant has answered over, and after verdict and judgment, the complaint should be held to be sufficient.

It appears from the testimony that in 1917 there was a payment upon the account by defendant of $24 made to Fred Trow. That thereafter, on or about January 1, 1919, the account was stated.

The defendant seeks to maintain that the statute of limitations commenced to run before the last date mentioned, claiming there was an account stated prior to that time. The statements in regard to the account made prior to the date mentioned were a different account. The record does not show that the account in question became stated until within a reasonable time after — about January 1, 1919.

Fred Trow rendered an account to the defendant George F. Moeck, Jr., of the balance that was due to Trow from Moeck for goods and merchandise. The defendant failed to object thereto and by implication of law assented to the account as stated. It was then in the nature of a new promise, but the consideration of the promise was the stating of the account. The original account became the consideration for the agreement and it was not necessary to prove the items of such account. The account stated is founded upon the defendant's consent or assent to the balance stated. Such agreed statement becomes an original demand and is equivalent to an express promise to pay the actual sum stated which Trow the creditor became entitled to recover: Holmes v.Page, 19 Or. 233 (23 P. 961); Fleischner v. Kubli, 20 Or. 338,339 (25 P. 1086); Crawford v. Hutchinson, 38 Or. 578,581 (65 P. 84).

A complaint is sufficient which alleges enough facts to support a promise to pay the account implied by law: Steinmetz v. Grennon, 106 Or. 625, 636 (212 P. 532). In the latter case, at page 636 of 106 Or., Mr. Justice HARRIS records the following language:

"The rule of the common law required an allegation that the defendant promised to pay, but under the modern rule, or at any rate under the more logical rule, a complaint is sufficient if it alleges enough facts to support a promise implied by law, for legal conclusions need not be alleged." (Citing several authorities.)

It is the general rule in the United States and also in England, that a particular case may be removed from the bar of the statute of limitations by, and for such purpose there must be, either: (1) An unconditional promise to pay the debt. (2) An acknowledgment of the debt from which a promise to pay is to be implied. (3) A conditional promise to pay the debt, which is accompanied by a sufficient showing that the condition upon which the promise is made to depend has been performed. There are, however, special statutory provisions: 37 C.J., § 563, p. 1096. The statute of limitations begins to run, as against an account stated, on the day following the agreement: 37 C.J. 771, § 106.

Our statute provides that actions shall only be commenced —

"§ 6. Within Six Years, — (1) An action upon a contract or liability, express or implied, excepting those mentioned in section 5."

The moral obligation to pay a valid debt or account is a sufficient consideration for a subsequent new promise in writing to pay it, made either before or after the bar of the statute is complete, and the new promise, based upon such moral obligation, is binding upon the debtor and may be shown in avoidance of the bar of the statute of limitations: 37 C.J., § 569, p. 1099;Marshall v. Marshall, 98 Or. 500 (194 P. 425); Davis v.Davis, 20 Or. 84 (25 P. 140). The writing in order to constitute an acknowledgment must recognize an existing debt, and contain nothing inconsistent with an intention on the part of the debtor to pay it: 37 C.J., § 604.

Section 24, Or. L., provides:

"No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same is contained in some writing, signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest."

It is not essential under this section that in a written acknowledgment signed by the debtor the consideration be expressed in order to take the case out of the statute. The jury might well conclude from the testimony that Moeck acknowledged the account in writing and promised to pay it. There was no error in refusing to grant a nonsuit.

The learned trial judge plainly instructed the jury fully along the lines herein briefly referred to, and we think the charge was proper and sufficient. The defendant requested proper instructions as to the running of the statute of limitations, provided the facts in the case had warranted the same. Under the testimony in the case it was not error to refuse such requests.

The defendant complains that Mrs. Woods, as a witness for plaintiff, was permitted over the objections of defendant to testify as to the custom of Trow in mailing out statements of accounts. The witness was present and superintended much of such clerical work; however, the bookkeeper, Mrs. Brough, was afterward called as a witness and testified that she actually mailed the statements to defendant, so that the defendant has no cause for claiming a want of evidence in this request.

Finding no error in the record, the judgment of the trial court is affirmed.

AFFIRMED. REHEARING DENIED.

BURNETT, C.J., and McBRIDE and BROWN, JJ., concur.