Aultman, Miller & Co. v. Connors

Siebeoicee, J.

This is an action by respondent upon an account stated. It is alleged that the parties to the action on September 29,1891, had a settlement of their monetary transactions, they stated an account, and that it was found that ap-pellauts were indebted to respondent in tbe amount specified in tbe settlement and accounting, wbicb tbey agreed to pay. Appellants admitted tbe settlement and tbe stating of tbe account, but claimed that tbey bad paid in1 excess of tbe sum due, and tbey demanded judgment for such excess under tbeir counterclaim. There is no dispute as to tbe items covered by tbe accounting and a subsequent payment of $387 by notes. Tbe controversy arises as to an item of $461.01, designated “sundry notes as collateral on machine account.”

It appears that, at tbe time of tbe accounting, appellants turned over to respondent sixteen notes, wbicb on tbeir face equaled tbe amount of tbe item in dispute. Tbe amount of this item was credited to appellants in fixing tbe balance dire respondent in tbe settlement, and tbey thereby treated the notes as a payment, instead of a deposit collateral to tbe debt. Since respondent brought this action on account stated, and these notes were treated as a payment on account when tbe settlement was made, it must be held to have received them as a payment, and tbey cannot be treated as collateral to tbe balance due. Under this state of tbe transaction between tbe parties, it must follow that respondent is not in a situation to seek relief by way of surcharging tbe account stated.

Tbe referee properly found that tbe balance due on tbe account sued on at the time of tbe.settlement was $701.80. Tic further found that there bad been collected by respondent the sum of $101.79 on collateral notes, wbicb bad not been credited in stating tbe account, and wbicb should be applied as a payment. There is no dispute as to tbe payment of $387 in notes on October 9, 1891. Crediting these amounts, there remained an unpaid balance of $213.01.

Tbe referee also found that respondent bad collected tbe sum of $350.29 on tbe sixteen notes turned over by appellants as collateral to their indebtedness on tbe machine account, and be credited this amount as a payment on tbe debt. He evidently erred in treating this sum as an additional payment by appellants, for it appears that tbe amount thus collected on notes was realized by respondent on tbe sixteen notes turned over to them on tbe day of settlement and accounting, wbicb were in fact included as a payment in striking tbe balance due on tbe stated account upon wbicb tbis suit is brought. This error of tbe referee in crediting tbe sum realized on these notes as a payment by appellants resulted in producing a loss to respondent equal to tbe sum so collected on these notes. Tbis item should not be credited to appellants, because they bad received tbe benefit of tbe notes as a payment when making the settlement.

Tbe court refused to confirm tbe referee’s report, and proceeded to restate tbe account of tbe parties as of September 29, 1891, without any amendment of tbe complaint, wbicb alleges a cause of action on account stated, admitted by appellants, who claimed an overpayment and demanded judgment therefor under their counterclaim. Under tbis state of tbe pleading and tbe issues, tbe court was not empowered to-surcharge tbe account upon any grounds. There is no allegation of fraud or mistake concerning tbe settlement and stated account, and no such question arose upon tbe issues in tbe case. Upon tbe evidence as reported by tbe referee, bis finding should have boon corrected to tbe effect that tbe item of $350.29, collected on notes by respondent and credited by tbe referee as a payment after tbe settlement, be modified by disallowing it, and by finding that there was a balance due respondent on tbe stated account, when action was brought, in tbe sum of $213.01, with interest from October 9, 1891.

It is contended that no competent evidence was adduced to show that tbe sum of $350.29 collected on notes was realized on tbe notes applied as a payment on tbe machine account in tbe settlement of September, 1891. There is direct testimony to tbis effect sustaining tbe finding of the referee. It is therefore immaterial that some corroborating evidence of a secondary nature was received upon tbis subject. We find sufficient competent evidence to sustain tbis finding.

By the Court. — Tbe judgment is modified by reducing tbe damages to $374.90, and tbe total to $477.03, and as so modified .tbe judgment is affirmed; appellants to recover costs in tbis court.