Fleischner v. Kubli

• Decision Date: 21 January 1891
• Citation: 20 Or. 328,25 P. 1086
• Parties: FLEISCHNER et al. v. KUBLI et al.
• Court: Oregon Supreme Court

25 P. 1086

20 Or. 328

FLEISCHNER et al. v. KUBLI et al.

Supreme Court of Oregon

January 21, 1891

Appeal from circuit court, Jackson county; L.R. WEBSTER, Judge.

This is an action to recover the sum of $971.18 on an account stated. The defendants had judgment in the court below, and the plaintiffs have appealed. The testimony tended to show that plaintiffs were wholesale merchants, doing business in Portland, Or., and the defendants retail merchants, doing business as partners in Jackson county, Or. That dealings between the parties covered a period of seven or eight years. That during that time the plaintiffs furnished the defendants with several statements of account. The first was dated June 1, 1883, and showed a balance of $2,148.69 in favor of the plaintiffs; the second was dated December 26, 1885, and showed a balance in favor of the plaintiffs of $3,483.66; the third was dated December 20, 1886, and showed a balance in favor of the plaintiffs for $3,693.16; the fourth, dated December 20, 1887, and showed a balance of $1,606.01 in favor of the plaintiffs; the fifth, dated February 10, 1888, and showed a balance of $971.78 in plaintiffs' favor. Statement No. 2 contained an item of interest of $420.80; No 3, an item of interest of $251.74; No. 4, an item of interest of $240.60. At the end of each statement were the letters "E. & O. E." The only objections which defendants ever made to any of these statements prior to August 27 1888, are in the following letters addressed by the defendants to plaintiffs: "Applegate, Feb'y 7, 1888 Mess. Fleischner, Mayer & Co., Portland, Oregon--Gents: Would you kindly send us statement in full of all our dealings in order to make a settlement. Also please explain why your statements do not show a credit to us of $3.75 error on mdse invoice, June 23d, '83. Also why our a/c is charged with cash, Nov. 23, '83, ($58.74.) Our books show no such item. Respectfully, KUBLI & BOLT." The corrections suggested in this letter were promptly made by the plaintiffs. On the 14th day of February, 1888, the defendants sent the following letter to plaintiffs with a remittance "Applegate, Feb'y 14, 1888. Mess. Fleischner, Mayer & Co., Portland, Oregon--Gents: Inclosed please find check on First National Bank for fifty-eight and 65-100 dollars, which you will please credit Kubli & Bolt. Oblige, yours, respectfully, KUBLI & BOLT." On the 27th day of August, 1888, the defendants sent the following communication to the plaintiffs, after being again pressed to pay the balance of the account: "Applegate, August 27, 1888. Messrs. Fleischner, Mayer & Co., Portland, Oregon--Gents: Referring to you letter inclosing statements of a/c we would say that, according to our books and your statement we have paid our a/c in full. The balance shown by your statements is interest, and interest upon interest. As your salesman sold us goods upon our own time, and as we never agreed or promised to pay any interest whatsoever, we are surprised to receive your statement with request to remit. Respectfully, KUBLI & BOLT."

The defendant Bolt testified upon the trial, in substance, as follows: "I am one of the defendants in this action, and we commenced doing business with Fleischner, Mayer & Co. in 1881. That about that time a stranger, claiming to be Mark A. Mayer, a son of one of the members of the firm of Fleischner, Mayer & Co., and claiming to be a partner of the concern, wished to sell me goods. Was then dealing in San Francisco. Was in debt considerably then, and couldn't very well deal with Fleischner, Mayer & Co. Mayer told me that if we dealt with them we could have all the time we wanted to pay without interest, and without any dunning letters. Finally he offered me goods very low, reasonable, and I bought a bill of goods of him. We continued business right along. They sent us accounts and statements right along, a great many of them. I never remember of having made any direct response to them. Whenever we could spare money we sent it to them." That he understood the letters "E. & O.E." to mean that it gave either party the right to correct any errors. (Witness here identified certain statements, and plaintiffs admitted they were the ones sent.) "When I received the statement I did not think it necessary to reply particularly. When I received the statement of February 10, 1888, I was on my ranch on Humbug, sick in bed, about three-quarters of a mile from my former place of business, having gone out of the mercantile business about two months before." This witness also produced and submitted in evidence the following letter from the plaintiffs: "Portland, Oregon, Aug. 31, 1888. Mess. Kubli & Bolt, Applegate, Oregon--Dear Sirs: We are in receipt of yours of 27th. Contents noted. We are very much surprised, indeed, that you should raise any question as to the balance due on your account, and especially that you should at this late day make any objection to the interest. It is our invariable rule to charge interest on all overdue accounts, and in doing so we only get back a portion of the large amount of interest that we have to pay the banks in order that we may be enabled to extend to you and other customers the accommodation they require. In your case we have charged interest after six months' time on all your bills, which is certainly a long credit. When you take into consideration the fact that the interest charged covers a period of seven (7) years' business, you must admit that the amount is not unreasonable, and it certainly only partially reimburses us for what we have paid out in interest in order that we might accommodate you. We have sent you statements from time to time, with interest charged thereon, and have your acknowledgment that you have received the same; and at no time in all these years have you ever made the slightest objection to the interest charged. We are certainly entitled to the balance due us as per statement rendered, and must insist upon your remitting in settlement of same; otherwise we shall be compelled to send the account to an attorney for collection. Hoping to hear from you promptly, we remain, very truly, yours, FLEISCHNER, MAYER & CO." The witness, after introducing another letter from plaintiffs, continued: "Since [[[the date of last letter] I have never received any other statement or letter. I think my partner, Mr. Kubli, did, just before this suit was commenced. I have met a member of the firm. It was when Mr. Mark A. Mayer sold us the first bill of goods. After that it ws traveling men. No member of the firm informed me personally that they would charge first interest, or change first agreement in relation to selling us goods." On his cross-examination the witness' attention was called to each statement, and he admitted they were received by the defendants, and that no objections were made thereto. The following letter, written by the defendants to plaintiffs, was identified by this witness and offered in evidence by plaintiffs: "Applegate, Oregon, Mar. 30, 1886. Messrs. Fleischner, Mayer & Co., Portland, Oregon--Gentlemen: Your communication of the 25 inst., asking for a remittance, received, and will say that we will dispose of some cattle by April 20th, when we will remit without fail. Thanking you for your long patience, we are, yours, respectfully, KUBLI & BOLT."

The court among others gave the jury the following instructions "(4) What is such reasonable time is, in this case, a question for the jury. It is for you to say, gentlemen. In determining that question, you must take into consideration all of the circumstances surrounding the transaction. Among other things, the distance between Portland, the place where the plaintiffs reside, and Applegate post-office, or Applegate, the place where the defendants reside, or where the firm,--I don't know particularly where the defendants reside; but where the firm Kubli & Bolt did business at that time. You will also take into consideration the mail connections between those two places, namely, Portland and Applegate,--the facilities they had of communicating by mail to each other. You will also take into consideration the previous transactions, business relations, and the course of dealing between the parties, the circumstances under which their account was received by the defendants, and all of the circumstances connected with and surrounding the whole transaction; and from all these you are to say, gentlemen of the jury, whether any objection was made to the account by Kubli & Bolt within a reasonable time after it had been received by them." "(10) Now, a stated account must be an account that exhibits the items which constitute such an account. For one person to make a stated account against another he must show the items of the account,--items which make up the account. (11) If, however, gentlemen of the jury, you are satisfied from the evidence in this case that the account sent by the plaintiffs in this case to the defendants, and which, it is claimed here, ripened into an...