Brown v. Cory

• Decision Date: 03 January 1967
• Docket Number: No. 8027,8027
• Citation: 1967 NMSC 1,422 P.2d 33,77 N.M. 295
• Parties: J. E. BROWN, Plaintiff-Appellee, v. George O. CORY, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 33

422 P.2d 33

77 N.M. 295

J. E. BROWN, Plaintiff-Appellee, v. George O. CORY, Defendant-Appellant.

No. 8027.

Supreme Court of New Mexico.

Jan. 3, 1967.

[77 NM 295] Menig & Sager, Lawrence T. Buchmiller, Albuquerque, for appellant.

Rueckhaus & Brown, Melvyn D. Baron, Albuquerque, for appellee.

OPINION

NOBLE, Justice.

Defendant, George O. Cory, has appealed from a judgment against him based on an account stated.

The trial court found that the plaintiff, J. E. Brown, had rendered legal services to the defendant, and at defendant's request mailed statements to KVOD Radio Station, a corporation controlled by the defendant. Among others, the court further found:

'6. That statements were sent monthly by plaintiff to KVOD Radio between November, 1962 and September, 1964; that plaintiff's statements were acquiesced in by defendant Cory's failure to seek any correction.

'7. That irregular payments were made to plaintiff, some by defendant Cory, some by defendant Colorado Radio Corporation.

'8. That the charges made by plaintiff were for legal services and that there is owing to plaintiff on an account stated the sum of one thousand six hundred eighty-six and 67/100 ($1,686.67) dollars.

'9. That legal services were rendered by plaintiff to defendant, George O. Cory, individually, and that plaintiff is entitled to recover for the account stated from the defendant George O. Cory.'

The court concluded that the obligation of Cory is for an account stated in the amount of $1,686.67. Defendant asserts that the conclusion is erroneous, because (1) it is not supported by the findings of fact, and (2) the court failed to find the date on which the last item of the account was rendered. The findings that an account was stated between the parties is further attacked as not supported by the evidence.

This court in Leonard v. Greenleaf, 21 N.M. 180, 153 P. 807, approved the following definition of an account stated:

"An account which has been rendered by one to another, containing the balance which is alleged to be due, which balance is assented to or admitted to be a correct account of the debt it represents as due from the debtor(,)"

and we there said that:

'The assent to the balance found to be due by the account stated, which may be an express promise, or one implied as a legal conclusion from a failure to object thereto within a reasonable time, creates a new and independent cause of action, * * *'

We find no merit to the contention that the court's findings fail to support the conclusion that an account was stated between the parties. It is simply supported by the proof that services were rendered, and that monthly statements were sent and not objected to. The objection that the court failed to find the date of the last item of the account, or to find various exact balances shown by such statements, is likewise without merit. The court is not required to find evidentiary facts. Rules of Civil Procedure 52(B)(a)(2) (§ 21--1--1(52) (B)(a)(2), N.M.S.A. 1953); Industrial Supply Co. v. Goen, 58 N.M. 738, 276 P.2d 509; Hoskins v. Albuquerque Bus Co., 72 N.M. 217, 382 P.2d 700. Our examination of the record...