Dettmer v. Fulls

• Decision Date: 11 December 1926
• Docket Number: 26,898
• Citation: 251 P. 396,122 Kan. 98
• Parties: WILLIAM DETTMER et al., Appellants, v. JOSEPH FULLS, Appellee
• Court: Kansas Supreme Court

251 P. 396

122 Kan. 98

WILLIAM DETTMER et al., Appellants, v. JOSEPH FULLS, Appellee

No. 26,898

Supreme Court of Kansas

December 11, 1926

Decided July, 1926.

Appeal from Lyon district court; ISAAC T. RICHARDSON, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACCOUNTS AND ACCOUNTING -- Account Stated -- Nature and Essentials. An account stated is an agreement, express or implied, between parties who have had previous transactions with each other, fixing and determining the amounts due in respect to such transactions, and, when made, such account stated becomes a new agreement and takes the place of the obligation resting upon either party by reason of the prior account. (Following Harrison v. Henderson, 67 Kan. 202, 72 P 878.)

2. SAME--Account Stated--Sufficiency of Evidence as Against Demurrer. In an action to recover on an account stated, the evidence considered and held sufficient as against a demurrer.

W. S. Kretsinger and Roland Boynton, both of Emporia, for the appellants.

W. C. Harris and O. S. Samuel, both of Emporia, for the appellee.

OPINION

HOPKINS, J.:

The action was one upon an account stated, and the question involved is whether the plaintiffs produced sufficient evidence to require submission of their case to the jury. A demurrer to the evidence was sustained and plaintiffs appeal.

Plaintiffs' petition alleged, in substance, that plaintiffs were dealers in general merchandise, lumber, coal and building materials; that between the 13th day of October, 1919, and the 6th day of September, 1922, plaintiffs at the request of defendant sold and delivered to defendant various items of goods, wares and merchandise of the total value of $ 334.07, of which an itemized statement was attached, marked "Exhibit A" and made a part thereof; that on October 1, 1922, plaintiffs prepared and rendered to defendant a written statement of plaintiff's account against defendant for said goods, wares, and merchandise, so sold and delivered, which statement showed a balance due to plaintiff from defendant on said account in the sum of $ 334.07; that this statement of account, showing the balance due as aforesaid, was on October 1, 1922, presented and delivered to defendant; that defendant thereafter examined said account showing said balance, retained said account, stated that said account and said balance were correct, and that he would pay plaintiff the balance shown on said account soon thereafter.

The plaintiffs adduced testimony, among other things, showing that plaintiffs were partners engaged in the mercantile business; that on October 1, 1922, defendant was indebted to them in the sum of $ 334.07; that one of the plaintiffs had a conversation with the defendant in which he asked for an itemized statement of his account; that an itemized statement was mailed to him; that he retained it and made no objection thereto; that on October 1, plaintiff had a conversation with him in the street opposite plaintiff's store about the account; that defendant had the statement of account and stated that it was correct; and that he would pay it. There was other evidence that defendant claimed he did not get all the goods charged to him, and in effect that there was no agreement to pay.

Was the evidence sufficient to go to the jury, and was it sufficient to establish an account stated?

"An account stated is an agreement, express or implied, between parties who have had previous transactions with each other, fixing and determining the amounts due in respect to such transactions, and, when made, such account stated becomes a new agreement and takes the place of the obligations resting upon either party by reason of the prior account." (Harrison v. Henderson, 67 Kan. 202, 205, 72 P. 878.)

An "account stated" is an acknowledgment of an existing condition of liability of the parties, from which the law implies a promise to pay the balance thus acknowledged to be due. (The State v. Ill. Central R. R. Co., 246 Ill. 188, 241, 92 N.E. 814.) It is an agreement between persons who have had previous transactions, fixing the amount due in respect thereto, and a promise to pay the balance. (Borders v. Gay, 6 Ga.App. 734, 65 S.E. 788; Allen-West Commission Co. v. Hudgins, 74 Ark. 468, 86 S.W. 289.) An "account stated" is an account in writing examined and accepted by both parties, which acceptance need not be expressed, but may be implied from the circumstances. (Leinbach v. Wolle, 211 Pa. 629, 61 A. 248, quoting Story's Equity Jurisprudence § 526.) The acceptance need not be in express terms. (Powell v. Pacific Railroad, 65 Mo. 658.) It may be inferred from retaining the account a sufficient time without making objection. (Freeland v. Heron, 11 U.S. 147, 7 Cranch [U. S.] 147, 3 L.Ed. 297; Patillo v. Allen-West Commission Co., 131 F. 680.)

"An account stated is an agreement between parties who have had previous transactions of a monetary character that all the items of the account representing such transactions, and the balance struck, are correct, together with a promise, express or implied, for the payment of such balance." (1 C. J. 678.)

"The meeting of the minds of the parties upon the...