Hendy v. March

Hayhe, C. —Action on an account stated. The court found that the account was stated as alleged. The defendant contends that the finding is not sustained by the evidence.

There being a substantial conflict, it must be assumed at this stage of the case that the version of the plaintiff's witnesses is the true one. According to them, the account was made up and presented to the defendant, who went over it with the expert, and “ made no objections whatever to the account,” from the time it was presented to him in August, 1881, “ until after this suit was brought,” which was on ' November 25th of the same year. This was a sufficient acquiescence from which to imply an assent. It seems to be well settled that the assent may be implied. In Terry v. Sickles, 13 Cal. 427, the court, per Cope, J., said: “If the account be sent to the debtor, and he does not object to it within a reasonable time, his acquiescence will be taken as an admission that the account is truly stated,” In relation to this subject, Judge Story says: “It is sufficient if it has been examined and accepted by both parties, and this accept[568]anee need not be express, but may be implied from circumstances. Between merchants at home, an account which has been presented and no objection made thereto after the lapse of several posts is treated, under ordinary circumstances, as being by acquiescence a stated account. Between merchants in different countries a rule founded in similar considerations prevails. If an account has been transmitted from the one to the other and no objection is made after several opportunities of writing have occurred, it is treated as an acquiescence in the correctness of the accoqnt transmitted, and therefore it is deemed a stated account.” (1 Story’s Eq. Jur., sec. 526.) The same rule is laid down by G-reenleaf. (2 Greenl. Ev., sec. 126.) The evidence above referred to brings the case fairly within this rule. And the account was undoubtedly final in character, and showed an indebtedness against defendant of a specific amount, and was sufficient in all respects to serve as the basis of an account stated.

The defendant contends, however, that even if this be so he is entitled to show mistakes in the account.

But an account stated becomes a contract. As was said by the court per Shafter, J., in Carey v. Petroleum Co., 33 Cal. 697: “An account stated alters the nature of the original indebtedness, and is itself in the nature of a new promise or undertaking. (Fossatt v. Allanson, 2 Term Rep. 479; Holmes v. De Camp, 1 Johns. 36; 3 Am. Dec. 293.) Therefore an account stated with a new firm may include debts due to a former firm or to one of the partners. (David v. Ellice, 5 Barn. & C. 196; Cough v. Davies, 4 Price, 200.) An action upon an account stated is not founded upon the original items, but upon the balance ascertained by the mutual consent of parties.”