Odenthal v. Lee

MOORE, P. J.

Judgment for $3,342.09 against defendant was entered on the court’s finding that he was indebted to plaintiff on an account stated. A reversal is sought on the ground that the evidence is insufficient to support the findings that there was an account stated between the parties for the sum of $9,388.85 either on May 24, 1948, or on June 30, 1948. No attack is made on the finding of an unpaid open book account. The findings disposed of the latter account by the declaration that the sum of $3,342.09 would be due, owing and unpaid by defendant on the book account “except for the account stated herein referred to on which said sum is owed.” Appellant says “because of said exception defendant limits this appeal to said account stated.”

[667]

Not only is the judgment supported by the finding of the unpaid open account, but the evidence in substantial amount supports the finding that the account was twice stated. Invoices and statements showing the materials delivered and services rendered during 1946 and 1947 were sent to appellant. During the same period the invoiced items were posted in respondent’s ledger account to Mr. Lee.

On May 24, 1948, appellant met in conference with Leonard Odenthal, respondent’s nephew and former employee, when the two discussed a statement of appellant’s account with respondent. A copy of the identical paper appears in the margin below.

1

Leonard testified appellant agreed with him that the balance of $9,388.85, as shown on Exhibit 4 was the correct, unpaid balance of appellant’s account with respondent and that it included the “Degnan extras of $1,355.”

Some confusion arose out of the events that occurred at the second meeting of the same day when respondent and Leonard met appellant and his attorney, Mr. Bushnell. Having no knowledge of the agreement already made by appellant and Leonard, Mr. Bushnell prepared a “Receipt and Release” to be executed by respondent. That writing recited that in consideration of the payment by Lee of $4,000, respondent should release appellant from all claims existing

[668]