Brown v. Kimmel

• Decision Date: 30 April 1878
• Parties: BROWN, Appellant, v. KIMMEL et al.
• Court: Missouri Supreme Court

67 Mo. 430

BROWN, Appellant,

v.KIMMEL et al.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Cape Girardeau Court of Common Pleas.--HON. H. G. WILSON, Judge.

Lewis Brown for appellant.

Houck & Ranney for respondents.

NAPTON, J.

The point discussed by the counsel in this case is whether, in actions on stated accounts or insimulcomputassent, the rules of evidence in regard to such actions are confined to dealings between merchants. That question was decided by this court in Shepard v. Bank of Missouri, (15 Mo. 143,) and that decision was recognized in the recent decision in Powell v. P. R. R. Co., 65 Mo. 658. The rule of evidence no doubt originated in mercantile dealings and the reported cases usually relate to such dealings, but the principle seems to have been extended to all cases where the relation of debtor and creditor exists. ( Wiggins v. Burkham, 10 Wallace 129.) The rule at best is a very flexible one and undoubtedly depends in its application on the circumstances of each case, to be judged by the nature of the transaction, the habits of the business in which it occurs and the course of trade. ( White v. Hampton, 10 Iowa 238.) In a general way an account rendered by a creditor to his debtor, and not objected to within a reasonable time, is regarded as evidence of an account stated--that is of an account conceded by both parties to be correct. And it has been held that what is a reasonable time in which to make objections is a question of law to be determined by the court. There are cases in which this presumed acquiescence, arising from lapse of time and failure to object within a reasonable time, has been considered very slight evidence of the correctness of the account. Kellam v. Preston, 4 W. & Serg. 16; Spangler v. Springer, 22 Pa. St. 454; and others again, where the courts have regarded it as conclusive, except where fraud or mistake is clearly shown. ( Lockwood v. Thorn, 11 N. Y. 170.) It will readily be perceived, on an examination of the numerous cases reported on this subject, that they have been decided on the peculiar circumstances attending each case, and most generally in proceedings in equity. In no case has such implied admission been held to be an estoppel--but simply a prima facie case throwing the burden of contradiction or explanation on the adverse party. The case of Phillips v. Belden, (2 Edw. Ch. R. 1, and Hutchinson v.Market Bank of Troy, 48 Barb. R. 324,) contain quite an extensive discussion of the subject.

1. PLEADING: account stated.

But it is unnecessary to examine the subject here, as the pleadings do not present the question. The action in this case is not on an account stated. The petition states that the defendants are indebted to the plaintiff for professional services and moneys advanced, and, as is required by our practice act in such cases, (2 W. S. p. 1020, § 38,) a bill of items of the account is recited in the petition. It is further alleged that this bill or account, thus recited, was, on the 15th of December, 1875, presented to defendants, and, after the lapse of some months, returned without objection, and that it is still due, and judgment is asked for the balance stated in the account. It is not averred in the petition that the account was a stated one, in other words, that both defendants and plaintiff agreed to it. Their retention of the account, without objection, is stated, which is a matter of evidence that may lead to the conclusion which they failed to aver. Such averments of evidence are immaterial, and, though harmless, do not supply the place of an averment of the fact that both parties agreed to the account, 2 W. S., p. 1020, § 39. The action in this case is for professional services rendered ...