Converse v. Scott

GRAY, C.

This action is brought by the mother of Henry C. Converse on an account stated between said Henry and another son of plaintiff, named Albert E. Converse. The account is alleged to have been stated between the brothers on August 30, 1898, and evidenced an indebtedness from Albert to Henry of fifteen hundred dollars. Henry died intestate on January 16, 1899, and the plaintiff, as his sole heir, succeeded to the claim against Albert. Albert also died on February 21, 1899, and the defendant herein was his surviving widow (since married again), and is administratrix of his estate. At the trial of the case before a jury the court nonsuited plaintiff at the conclusion of the evidence, on the sole ground that she had failed to show an account stated between the two brothers. The plaintiff appeals from the judgment following the nonsuit and from an order denying her a new trial. The evidence as to the account stated is without substantial conflict, and may be summarized as follows: Albert and Henry, with their respective attorneys and a stenographer, met at the office of one of the attorneys on August 30, 1898, for the purpose of transacting some business. Immediately after this business was transacted Henry said to Albert: “There is now another matter. You owe me

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about $2,500 or more, and I want some arrangement made in regard to that. ’ ’ Albert said he did not think it was as much as $2,500. Henry said that he could show him the items of the account; that it was somewhere among his papers. He said: “If you dispute the account let it go. I don’t care whether you call it anything or not.” And Albert said: “No, I won’t do that, because I do owe you considerable money, but I do not think it is as much as $2,500.” Henry said: “It is more than $2,500 and nearer $3,000, but I will call it $1,500 if you like.” Albert said: “No, I know it is more than $1,500; I want to pay you what I owe you; I would rather wait and find out the exact amount.” Then Mr. Rogers, attorney for Albert, said in the presence of all to Albert: “Are you satisfied that it is as much as $1,500 or more?” And Albert said: “Yes, I know it is more than $1,500.” Mr. Rogers then said to Henry: “Are you willing to take $1,500?” And Henry said: “Yes, I will call it $1,500 to make it square.” So Mr. Rogers said to Albert: “Better settle it now at that figure.” And they agreed both of them that the debt was fifteen hundred dollars. They orally agreed that they would call it fifteen hundred dollars and settle it then. Mr. Kellogg, the attorney for Henry, then said to both the brothers that this was to be a settlement of all accounts between them; that Albert had nothing against Henry, and Henry had nothing against Albert except the fifteen hundred dollars; and the brothers acquiesced in that statement. During this conversation between the brothers and their attorneys there were no written accounts exhibited, but Henry said to Albert that “it is nearer $3,000 than $2,500; but if you will go down with me and look at the account which I have in the safe deposit I can show you the items.” But it appears that Albert waived an inspection of the items, expressed himself as satisfied that the balance due from him to Henry was more than fifteen hundred dollars, and in a perfectly friendly way it was orally agreed between them that the balance in Henry’s favor should be treated as fifteen hundred dollars and the account between them settled at that figure. At the conclusion of this conversation, Mr. Kellogg turned to his stenographer and in the presence of the brothers dictated and the same was taken down, word for word, by the stenographer in shorthand as follows:—