Harrison v. Henderson

• Decision Date: 06 June 1903
• Docket Number: 13,175
• Citation: 67 Kan. 202,72 P. 878
• Parties: T. W. HARRISON v. HARVEY HENDERSON, as Executor, etc
• Court: Kansas Supreme Court

72 P. 878

67 Kan. 202

T. W. HARRISON v. HARVEY HENDERSON, as Executor, etc

No. 13,175

Supreme Court of Kansas

June 6, 1903

Decided January, 1903.

Error from Shawnee district court; Z. T. HAZEN, judge.

STATEMENT.

THIS is a companion case to No. 12,988 (ante, p. 194). The defendant in error resided in Pittsburg, Pa., and as executor of the estate of James L. Reed placed in the hands of the plaintiff in error, an attorney living in Topeka, several claims for collection, out of which grew no little litigation. Harrison collected some $ 5400. He received also remittances of cash from Henderson. He paid out various amounts in costs and other disbursements and sent to Henderson on March 9, 1898, $ 1000. In April, 1898, Henderson came to Topeka to obtain from Harrison a statement of receipts and disbursements on account of his employment, but failed to procure it. He came again for the same purpose the latter part of August, 1899, and after several demands therefor a statement was rendered him showing a balance of $ 598.77 due Harrison September 1, 1899. On the 28th day of July, 1900, this action was brought for the recovery of $ 6456, which Henderson alleged had come to the hands of Harrison while acting as his attorney. For answer, Harrison admitted that he had acted as Henderson's attorney from the month of February, 1891 and had continued so to act up to the time of filing of the answer. He admitted receiving the amounts of money as charged in the petition, but claimed that there was due to him for services and expenditures in and about the matters in litigation various sums, so that there was due to him at that date $ 774. He pleaded--

"that the services so rendered were reasonably worth the items and sums as therein stated and charged, and that said account is correct, just and true and wholly unpaid, except as therein stated; that the same and said acts, services, and expenditures, so done and performed by this defendant for said plaintiff, were all duly submitted and reported by this defendant to said plaintiff, and the same were duly approved by said plaintiff, and that there is due and owing from said plaintiff to this defendant because thereof, and as a balance on said. account, the sum of $ 744.70."

Accompanying this answer was an itemized account for services rendered and of moneys received and disbursed from February, 1891, up to August 6, 1900, $ 560 of these items appearing as charged subsequently to the 1st day of September, 1899. The issues were closed by a reply which admitted that an account was submitted to the plaintiff, but denied that he ever approved or accepted of it as true or correct. As in case No. 12,988 the issues were referred for findings of fact and conclusions of law to the Honorable J. D. McFarland, and without objection on the part of the defendant. The question of the reasonableness of the fees charged by him for his services in the legal matters which had been committed to him was tried to the referee; indeed, that was practically the only question submitted to the consideration of the referee. Over the objection of the defendant, the referee found that these charges as made by Harrison were too great in the sum of $ 2284.95, and judgment for this amount, with interest at six per cent. from the 23d day of April, 1900, was entered by the district court against Harrison. From this judgment he prosecutes this proceeding in error.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACCOUNT STATED--Defined and Distinguished. An account stated is an agreement, express or implied, between parties who have had previous transactions with each other, fixing and determining the amount due from one to the other on account, and when such agreement is made, such account stated becomes a new obligation and takes the place of the one on the prior account.

2. ACCOUNT STATED--Waiver. Where an action is brought and defended as on the original account, the account stated is waived, even if it had been theretofore agreed upon.

3. ACCOUNT STATED--Account Rendered is Not an Account Stated. The mere furnishing by one party to another of a statement of an account, without a view to settling the claim and adjusting the amount due thereon, will not raise the implication of an account stated, although such account be retained without objection by the one to whom it was rendered.

4. ACCOUNT STATED--Question of Fact. The rendition of an account, together with its retention without objection, is but one circumstance, to be submitted with all others to the trier of fact to determine whether there has been an account stated.

T. W. Harrison, R. B. Welch, and D. T. Gregg, for plaintiff in error.

Eugene Hagan, and A. F. Williams, for defendant in error.

CUNNINGHAM J. All the Justices concurring.

OPINION

CUNNINGHAM, J.:

The claim is made that the referee made no sufficient findings upon the issues between the parties. This objection was made to the referee without either specifically pointing out...