Griffith v. Hicks

• Decision Date: 17 October 1921
• Docket Number: 167
• Citation: 233 S.W. 1086,150 Ark. 197
• Parties: GRIFFITH v. HICKS
• Court: Arkansas Supreme Court

233 S.W. 1086

150 Ark. 197

GRIFFITH v. HICKS

No. 167

Supreme Court of Arkansas

October 17, 1921

Appeal from White Circuit Court; J. M. Jackson, Judge; affirmed.

Judgment affirmed.

John E Miller and C. E. Yingling, for appellant.

An account stated is not of itself conclusive but is open to rebuttal by competent testimony. Jones, Commentaries on Evidence, Vol. 2, § 287.

Whether the balance contained in an account rendered was admitted by the debtor so as to make the account an account stated in a question of fact for the consideration of the jury. Vol. 1 R C. L. p. 211, § 9.

The presumption of acquiescence in an account rendered arising from the fact that no objection thereto is made within a reasonable time is not conclusive, but only evidence of an admission, and is, therefore, subject to disproof. Vol. 1 R C. L. p. 214, § 12; see also page 215, § 13 for rule on question of weight to be given subject under such circumstances, as well as 105 Iowa 488; 67 A. S. R. 306 and 80 Ark. 438. The trial court erred in giving a peremptory instruction to find that the account had become an account stated, as the matter should have been left to the jury. See 80 Ark. 469; 120 Ark. 316; Vol. 1 C. J. p. 680, § 251, also p. 691 § 276, and p. 692 § 277.

During the time that appellee claims his various fees were accruing, without making any demand therefor, he borrowed money of the appellant, giving his note therefor. This in itself gives rise to the presumption that appellant was not at the time indebted to the appellee. 119 Minn. 441, Ann. Cas. 1914B p. 381.

J. N. Rachels, for appellee.

An itemized account, rendered by one and assented to by the other of the parties thereto, becomes an account stated, and as a new cause of action. 47 Ark. 541, 126 S.W. 757; 58 Mo. 83; 79 Mo. 77; 131 F. 688; 107 F. 881; 108 F. 726; 180 S.W. 19; 226 S.W. 610.

Assent may be given either expressly (verbally or in writing) or impliedly (by compliance or silent acquiescence). 47 Ark. 541; 65 Mo. 661; 129 S.W. 994; 166 S.W. 1126; 184 S.W. 951; 216 S.W. 1009; 21 Wall. 105; 17 Otto 325; 65 P. 84; 229 S.W. 833; 185 S.W. 786; 175 S.W. 1140.

When an account rendered has been assented to, the question of liability is one of law for the court, not one of fact for the jury. 47 Ark. 541; 80 Ark. 469; 19 Mo.App. 534, etc.

Whether an account rendered and not objected to within a reasonable time, and not assailed for fraud or mistake has become an account stated is a question of law, not one of fact. 80 Ark. 469 and other authorities cited above.

An account stated is final and unimpeachable, except for fraud, accident or mistake. 114 Ark. 312; 13 Ark. 609; 21 Ark. 421; 19 Ark. 648; 55 Ark. 155.

The doctrine of account stated applies to the relationship of attorney and client. 80 Ark. 469; 65 P. 84.

OPINION

SMITH, J.

This is a suit filed by appellee Hicks against appellant Griffith upon a statement of an account which is alleged to have become an account stated.

Hicks was a resident of this State until 1916, when he removed to St. Louis, where he has since resided. Griffith is also a resident of that city. Hicks was for many years the attorney in this State for Griffith, whose interests here were varied and valuable. The professional relation was mutually satisfactory, and the personal relation was close and cordial, as shown by the correspondence between the parties offered in evidence.

Griffith is shown to be a man of large affairs, and from time to time loaned Hicks considerable sums of money. One such loan was evidenced by a note dated February 23, 1913, for the sum of $ 1,781.25, due one year after date. This note was executed jointly by Hicks and one E. A. Robbins, of Searcy, Arkansas.

Finally an estrangement grew up between Hicks and Griffith, and on November 19, 1917, Hicks rendered Griffith what Hicks testified was a complete statement of the account between them, in which he embraced all the items of professional service for which charges had been made, and credited the account with payments received and also with the note signed by himself and Robbins. Griffith received the account the day after it was mailed. No objection of any kind to the account was made by him except as hereinafter stated.

Griffith saw Robbins in Searcy and demanded payment of the note, and Robbins communicated that fact to Hicks in July, 1919. When advised of this demand on Robbins, Hicks told Robbins that he would attend to the note, as that was an affair between himself and Griffith, This assurance satisfied Robins, and he gave the matter no further attention. Robbins died in August, 1919, and some months thereafter Griffith filed the note with the administrator of Robbins' estate for allowance and classification. This proceeding was had in the probate court of White County, the county in which Robbins lived and in which the administration on his estate was pending.

On January 5, 1920, which was immediately after Hicks had been advised that the note had been filed as a claim against Robbins' estate, Hicks brought this suit. On January 20, 1920, Griffith filed an answer, denying liability for the items comprising Hicks' account. At the same time he filed a counterclaim and prayed judgment against Hicks.

In the direct examination of Griffith in the trial from which this appeal comes he was asked if he had talked with any one about the statement he had received from Hicks. He answered that shortly after he got the statement he had a talk with Mr. Cornwell, who was Hicks' law partner. This conversation occurred in Griffith's office, where Cornwell had come as the representative of Hicks to discuss a matter of business between Hicks and Griffith, but which had no relation to the items covered in the account which Hicks had mailed to Griffith. Griffith was asked: "What, if anything, did Cornwell represent to you about the contract; I mean about the statement, and about the amount due or claimed to be due Mr. Hicks?" An objection to this question was sustained. Griffith was further asked: "Did Cornwell come there to see you as the representative of Hicks?" And, also: "Did Cornwell state to you that he wanted to talk to you about the account which Hicks had rendered to you?" Objections were sustained to both these questions. Thereupon Griffith offered to show that "Mr. Cornwell, the law partner of Mr. Hicks, came to see Mr. Griffith about the account, and asked to talk to him about it, and at that time he denied owing Mr. Hicks anything on the items charged to him."

This offer of proof was by the court refused, and Griffith excepted.

Griffith gave testimony sufficient to raise an issue for the jury as to the correctness of Hicks' account, if the account was not in fact an account stated.

Hicks denied that Cornwell had any authority to represent or act for him in adjusting or settling his account against Griffith.

The court directed the jury to return a verdict in favor of Hicks, and this appeal is prosecuted to review that action.

The statement of the account was mailed and received in Missouri and we must, therefore, look to the law of that State to determine whether the account became stated. The case of Bloss v. Aurora Milling Co., 207 Mo.App. 402, 229 S.W. 833, is said to be the latest expression of an appellate court of that State on the question of an account stated. This decision is by the Springfield Court of Appeals, and, in defining an account stated, the court quotes from the case of Powell v. Pacific R. R., 65 Mo. 658, the following language of the Supreme Court of that State: "An account settled between the debtor and creditor therein in which a sum of money or balance is agreed on and an acknowledgment by one in favor of the other of a balance or sum certain to be due and an express or implied promise to pay the sum by one to the other." Continuing, Cox, P. J., speaking for the court, said:...