Hale v. Hale

• Citation: 86 N.W. 650,14 S.D. 644
• Parties: HALE v. HALE.
• Decision Date: 12 June 1901
• Court: Supreme Court of South Dakota

86 N.W. 650

14 S.D. 644

HALE v. HALE.

Supreme Court of South Dakota

June 12, 1901

Appeal from circuit court, Meade county; Joseph B. Moore, Judge.

Action by John D. Hale against James A. Hale. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Michael McMahon (John F. McClung, of counsel), for appellant. Wesley A. Stuart and Edwin Van Cise, for respondent.

FULLER P. J.

After the preliminary averment that the parties litigant had jointly purchased horses and sold them to the United States for the use of its cavalry, pursuant to an agreement to share equally in all profits and losses, the ultimate facts, upon which plaintiff obtained a judgment from which the defendant appeals, are stated thus: "That thereafter, and on or about the 13th day of December, A. D. 1898, the plaintiff and defendant had a settlement, and defendant made and rendered plaintiff an account stated of the balance of net profits due plaintiff on account of the sale of said cavalry horses to the government, showing the sum of seven hundred and twenty-seven dollars, which said defendant then and there agreed to pay plaintiff. But the defendant has failed neglected, and refused, and still neglects and refuses, to pay the same, or any part thereof, except the sum of one hundred and seventy-seven dollars paid by defendant to plaintiff on December 14, 1898, leaving a balance due plaintiff on account of said account stated of five hundred and fifty dollars. Wherefore plaintiff demands judgment against defendant for the sum of five hundred and fifty dollars, with interest at seven per cent. per annum from December 13, 1898, besides his costs and disbursements herein expended or incurred." An exception was taken to the action of the trial court in overruling the following objection: "The defendant at this time objects to the introduction of any evidence in support of this complaint for the reason that its face fails to state the cause of action, in this: that they alleged the partnership, that these men were co-partners, in a partnership business, and it is nowhere alleged that the partnership business has been settled." Considered in the light most prejudicial to the ruling, the objection is not sustainable, for the reason that a cause of action is well pleaded upon an account stated by the partners after an accounting between themselves, which amount appellant actually agreed to pay. In the absence of mistake, fraud, or duress, an account stated by partners will not be opened for investigation, even in an action for an accounting. Wahl v. Barnum, 116 N.Y. 87, 22 N.E 280, 5 L. R. A. 623; Gage v. Parmelee, 87 Ill. 329. Here it is alleged that payment was promised after an accounting and settlement were had between the parties by which the exact amount due respondent was not only ascertained, but rendered and mutually accepted as an account stated. Now, the expression "account stated" has in law, a well-understood meaning; and facts amply sufficient to show its existence, together with a legal obligation to pay the amount specified, are sufficiently stated in a complaint most certainly entitled to immunity from such objection first made at the trial. Heinrich v. Englund, 34 Minn. 395, 26 N.W. 122; Bouslog v. Garrett, 39 Ind. 338; McFarland v. Cutter...