Godfrey v. Hughes & Hall

• Decision Date: 05 October 1914
• Docket Number: 152
• Citation: 169 S.W. 958,114 Ark. 312
• Parties: GODFREY v. HUGHES & HALL
• Court: Arkansas Supreme Court

169 S.W. 958

114 Ark. 312

GODFREY v. HUGHES & HALL

No. 152

Supreme Court of Arkansas

October 5, 1914

Appeal from Randolph Circuit Court; John W. Meeks, Judge; reversed.

STATEMENT BY THE COURT.

Appellees are physicians and surgeons, and in that capacity attended the families of both appellants, and made settlement of their accounts as such with them on June 1, 1910. On that day appellant Holmes, in settlement of his doctor's bill executed to appellees his note in the sum of $ 121.50, and on the same day Godfrey, the other appellant, in settlement of his doctor's bill, executed to appellees his note in the sum of $ 153, which note was signed by Godfrey as principal and Holmes as surety. The note executed by Holmes individually appears to have been paid, but suit was brought upon the other note, and this appeal is prosecuted from the judgment rendered in the suit upon that note. The suit on this note was begun in the court of a justice of the peace and at the trial before the justice a set-off was filed by appellant Holmes amounting to $ 258.65, and judgment was rendered in his favor for the excess over the face of the note. An appeal was duly prosecuted to the circuit court and, upon the trial there, appellees offered in evidence the note sued upon, the execution of which was admitted, and rested their case. Whereupon appellants, to maintain the issues on their part, introduced Holmes, who testified that he had had numerous transactions with appellees, but that no attempt was made to make any settlement of any part of the amount due him. He testified that appellees presented him with a statement of his doctor's bill, the correctness of which he did not then, and does not now, question, but that no account was taken of the various items for which credit is now asked. He explains this by saying that appellees stated they desired to raise some money and wanted to use his note as collateral for that purpose; that a considerable part of his account against appellees was for horse hire, and at the time of the execution of the note appellees were then using one of his horses, and it was not known how much longer they would continue to use it, and no attempt was, therefore, made to ascertain and settle the indebtedness due him by appellees. In other words, the note represented only the amount of his doctor's bill, without taking into account the various credits to which he was entitled. He further testified that he signed this note relying upon appellees' promise to later settle their indebtedness with him.

Upon motion of appellees, this evidence was excluded, and the court then, over the objection of appellants, instructed the jury to return a verdict in favor of appellees, for the full amount sued for, less certain credits which were subsequent to the date of the note.

Judgment reversed and cause remanded.

T. W. Campbell, for appellants.

The execution of the notes did not operate as an account stated. That doctrine has no application to the facts in this case. There was no account rendered to Holmes giving debits and credits, but was only a statement of debits, and the proof is that at the time Holmes executed the notes he expressly mentioned the horse hire and insisted that same be set-off against the doctor's bill, and that Hughes stated that they would pay him later for the horse hire.

It is the consent of the debtor that the balance claimed is the true amount of indebtedness between the parties, that imparts the character of an account stated. 52 Miss. 494; 10 Hump 238; 1 Cyc. 379; Id. 366; Id. 381; 55 Ark. 376; 86 Ala. 238; 130 Mo. 668.

C. H. Henderson, for appellees.

An account stated is not subject to attack except for fraud or mistake. 64 Ark. 39; 80 Ark. 438; 41 Ark. 502; 68 Ark. 534; 80 Ark. 438. The settlement in this case resulting in the execution of the notes constituted an account...