Everett v. Webb Furniture Co.
| Decision Date | 25 October 1929 |
| Citation | 98 Fla. 780,124 So. 278 |
| Parties | EVERETT v. WEBB FURNITURE CO., Inc. |
| Court | Florida Supreme Court |
Error to Circuit Court, Broward County; Vincent C. Giblin, Judge.
Assumpsit by the Webb Furniture Company against K. K. Everett, doing business under the name and style of Everett Furniture Store. A verdict was directed for plaintiff, and defendant brings error.
Reversed.
Syllabus by the Court
Account rendered not objected to within reasonable time may be regarded as admitted as prima facie correct. Rule that account which has been rendered, and to which no objection has been made within reasonable time, may be regarded as admitted by party to whom and against whom account is rendered as prima facie correct, presupposes and assumes that there was some indebtedness between parties.
There is no liability on account stated if no liability existed when account was presented. There can be no liability on account stated if in fact no liability existed at time account was presented.
Mere presentation of claim not shown objected to cannot of itself create liability. Mere presentation of claim, although such claim is not shown to have been objected to, cannot of itself create liability.
In absence of evidence of order by defendant for goods from plaintiff, and where account stated was rendered before goods were accepted, no basis existed for account stated. Where evidence in action of assumpsit, based on account stated failed to establish any dealings between parties prior to rendition of alleged account stated, or that, prior to mailing of invoice of goods to defendant, defendant had in any way assumed to pay for goods, there was no basis for account stated.
G. H. Martin and Elbert B. Griffis, both of Ft Lauderdale, for plaintiff in error.
Baxter, Byrd & Walton, of Ft. Lauderdale, for defendant in error.
In this case defendant in error sued the plaintiff in error in the court below in an action of assumpsit. The declaration was originally in ten counts; all being common counts. At the trial plaintiff abandoned every count except that declaring on 'accounts stated.'
The alleged account stated, and which was offered in evidence, was the invoice for a carload of furniture.
The defendant's plea was 'never was indebted.'
Trial was had on the issues.
When the plaintiff had introduced all its testimony, defendant moved for a directed verdict, which was denied.
Defendant put in his testimony, and the court, on motion, directed a verdict for plaintiff.
There are a number of assignments of error. It is not necessary for us to consider any of the assignments, except the one based upon the action of the court in denying the motion of defendant for a directed verdict in favor of the defendant.
Plaintiff's evidence, as well as all the evidence when considered together, fails to establish any dealings between the parties prior to the rendition of the alleged account stated.
The purported account stated was admitted by the plaintiff to be the original invoice for the carload of goods. The evidence was that the shipment of goods was made, and the invoice made out and mailed to the defendant coincidentally.
There was no evidence that, prior to the mailing of the invoice to the defendant, the defendant had in any way assumed to pay for the goods for which the invoice was made.
It might be assumed that, if the plaintiff shipped the goods and afterwards the...
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... ... attention, is one of our Florida cases, the case of Webb ... Furniture Co. v. Everett, 105 Fla. 292, 141 So. 115. A ... previous judgment in the case had ... ...
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Webb Furniture Co, Inc.. v. Everett
...counts. Writ of error to that judgment resulted in its reversal by this court on the sole ground of lack of evidence to support it. 98 Fla. 780, 124 So. 278. When the went down on reversal, the plaintiff moved to amend its declaration by adding thereto a count for goods bargained and sold b......
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Merrill-Stevens Dry Dock Co. v. Corniche Exp.
...to pay this balance. Harold R. Clune, Inc. v. Healthco Medical Supply, 433 N.Y.S.2d 52, 78 A.D.2d 914 (1980); Everett v. Webb Furniture Co., Inc., 98 Fla. 780, 124 So. 278 (1929). Cf. Dudas v. Dade County, 385 So.2d 1144 (Fla.3d DCA 1980) (account stated proved by implication); Robertson v.......
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...Seed Filter & Mfg. Co., 175 App. Div. 812, 162 N. Y. S. 451; Jose v. Aufderheide, 222 Mo. App. 524, 293 S. W. 476; Everett v. Webb Furniture Co., 98 Fla. 780, 124 So. 278; Swim v. Juhl, 72 Cal. App. 363, 237 P. 552; In re Merz (C. C. A.) 45 F. (2d) 558. White v. Turner-Hudnut Co., 322 Ill. ......