Tuggle v. Minor

California Supreme Court May 7, 1888 No. No. 11210Published

Before: Paterson

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Holding. The court held that an account stated exists for all items agreed upon as correct, even if some items remain subject to future adjustment, and that the defendant's written renewals constituted an absolute promise to pay the undisputed portion of the debt.

Issues

Whether an account stated can exist when some items are left for future adjustment.
Whether the defendant's written indorsements constituted a sufficient acknowledgment to toll the statute of limitations.
Whether the defendant's promise to pay was absolute or contingent upon the success of specific litigation.

Disposition. remanded

Quotations verified verbatim against the opinion

“when all of the items of an account are admitted to be correct, except particular ones which are left by the parties for future adjustment, the account becomes stated as to those items which are admitted to be correct.”

“It was an absolute agreement to pay at least all of the items except the last. By the second indorsement this agreement to pay was renewed in express terms.”

Synopsis

Stated Account—Agreement as to Particular Items — Future Adjustment. — When all of the items of an account are admitted to be correct, except particular ones which are left by the parties for future adjustment, the account becomes stated as to those items which are admitted to be correct.

Id. —Debt Payable on Contingency. —An account cannot be stated with reference to a debt payable on a contingency.

Id.—Promise to Settle.—The meaning of the word “settle,” as used in a promise by a debtor to settle an account, is a question of fact to be determined by the circumstances.

Id.—Renewal oe Promise to Pay—Indorsement on Account—Statute oe Limitations.—On the 6th of October, 1879, the plaintiff, a creditor of the defendant, presented to him an account containing, several items, one of which was indorsed as subject “to be investigated as to amount. ” On the same day the defendant made and signed a written indorsement on the account as follows: “On my return from New York I will settle the above account with P. Tuggle personally.” On the 4th of October, 1881, he made and signed a second indorsement as follows: “This agreement renewed this day.” Held, that the first indorsement was an absolute agreement to pay the undisputed items of- the account, and that by the second indorsement the agreement to pay was renewed in terms sufficient to take the account out of the operation of the statute of limitations.

Paterson, J. —On the sixth day of October, 1879, the defendant rendered to the plaintiff an account made out entirely in his own handwriting, showing a balance of $13,371.70 due from the defendant to the plaintiff. The following is a copy of the account so presented, with the memorandum afterwards written on'it, October 4, 1881:—<

Exhibit A.

(Copy of Account.)

Sales of Summit:—

Gave away 2,410 shares

Sold 2,590 shares.....................$2,938 65

5,000 shares.

Sales of Bechtel:—

Gave away 250 shares.

Sold 4,750 shares......................27,910 00

5.000 shares.

Tioga stock:—

Gave' away 166f shares.

Sold 1,833& shares.................... 5,176 75

2.000 $36,025 40

Total realized...........................$36,025 40

[99]One half is...............................$18,012 70

Less paid................................ 5,000 00

$13,012 70

Advanced: — Bechtel Asst...........$1,500 Less — Cash...........$683 One half of Bodie. 458— 1,141 $359 This last item s- to be investigated as to amount. J

On my return from New York I will settle the above account with P. Tuggle personally* B. B. Minor. October 6, 1879.

October 4,1881. This agreement renewed this day.

B. B. Minor.

The court found that the account as presented was on the 6th of October examined by the plaintiff and defendant, and thereafter, and before the commencement of this action, the account as stated was accepted and agreed to by both parties; that on the same day, by an indorsement on the account, the defendant agreed, to pay said account as so stated, and renewed the agreement on the 4th of October, 1881, in writing.

Tuggle v. Minor

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