Hoover-Dimeling Lumber Co. v. Neill
| Decision Date | 25 January 1916 |
| Docket Number | 2855. |
| Citation | 87 S.E. 855,77 W.Va. 470 |
| Parties | HOOVER-DIMELING LUMBER CO. v. NEILL. |
| Court | West Virginia Supreme Court |
Submitted January 18, 1916.
Syllabus by the Court.
In an action for a debt, defendant may at the trial offer and have allowed against such debt any payment or set-off which is so described in his plea or in his account filed therewith before the trial as to give notice of its nature, whether he acquired the account before or since the commencement of the action.
Generally where persons who have had previous transactions of a monetary character agree that the account representing the transactions and the balance shown are correct, and the debtor expressly or impliedly promises to pay such balance the account thereby becomes an account stated.
An account stated does not create an es toppel; and, while it affords presumptive evidence of the accuracy and correctness of the charges therein stated, such presumption may be rebutted by showing fraud, mistake, or error in its execution or procurement, unless the position of the opposite party has been altered to his prejudice. And the burden of proof rests on him who challenges the verity of such account.
An account stated by a commissioner under an order of reference entered in an action at law, while not conclusive against the parties, will be treated as prima facie correct; and on him who challenges its accuracy or justness devolves the duty of showing it to be unjust or inaccurate.
Ordinarily interest will not be allowed on an unliquidated account or claim, except from the time the amount due is ascertained judicially or by the act of the parties.
Additional Syllabus by Editorial Staff.
An "account stated" is an agreement between parties who have had previous transactions of a monetary character that all items of the account representing such transactions and the balance struck are correct, together with a promise express or implied for the payment of such balance.
Error to Circuit Court, Randolph County.
Action by the Hoover-Dimeling Lumber Company, composed of E. J Hoover and John Dimeling, partners, against A. D. Neill. Judgment for defendant, and plaintiff brings error. Affirmed.
Talbott & Hoover, of Elkins, for plaintiff in error.
Samuel T. Spears, of Elkins, and Andrew Price, of Marlinton, for defendant in error.
In an action of assumpsit brought to recover of A. D. Neill, sole defendant, a balance by plaintiffs, John Dimeling and E. J. Hoover, partners trading as Hoover-Dimeling Lumber Company, Limited, claimed to be due them upon a contract of sale of real and personal property to defendant and A. Gilfillan (since deceased), a reference was ordered to state an account between the parties, pursuant to section 10, c. 129, Code 1913 (sec. 4855); they agreeing thereto. The account so stated and reported by the commissioner showed a balance of $7,082.12 due defendant, and for this amount with interest judgment was rendered accordingly; and plaintiffs brought the case before us for review on writ of error.
The cause of action arose out of a contract dated March 31, 1906, whereby Hoover and Dimeling, as owners, sold to Gilfillan and Neill all the timber lands therein mentioned and the lumber business conducted by plaintiffs thereon, together with the fixtures, contracts, easements, rights, and privileges unto said premises or business belonging or in any wise appertaining as they stood on February 1, 1906, or as had since accrued thereunto. On that date the property was to be clear and free of any debts or charges due from the grantors other than the deferred purchase-money notes and payments listed and described in the agreement, with the provision that any balance due on account of the conduct of the business subsequent to February 1, 1906, should be ascertained upon final settlement and paid accordingly. The contract contained other covenants and conditions not material upon the issues.
Of the six contracts so assigned, only one need be noted. It was a verbal contract between the Hoover-Dimeling Lumber Company and W. J. Cox "relative to stocking of logs, the terms and specifications of which," according to the recitals of the sale agreement, then were known by all the parties thereto.
As to the several assigned agreements, the reciprocal provisions were that the vendors conveyed all the rights possessed by them therein, and the purchasers assumed the obligations thereby imposed on the vendors. There were two verbal stocking contracts between plaintiffs and Cox at that time, distinguished and known as the 1905 and 1906 contracts. Of these it seems reasonably certain the first or 1905 Cox contract is the only one involved in this action; for, so far as otherwise appears, the contract for the next year was to be, and virtually has been, fully performed and all matters arising out of it settled and adjusted by the purchasers and Cox. Plaintiffs were relieved from any responsibility as to it. That Gilfillan and Neill before the institution of this action had paid all the consideration directly payable to plaintiffs under the terms of the contract, aggregating several hundred thousand dollars, except the $4,837.95, the amount of the original bill of particulars filed with the declaration, apparently is conceded. This sum plaintiffs claim the right to recover as part of a balance due them on an account stated as of March 20, 1906, after deducting a note of $7,000 since paid to them. Whether such unpaid balance was retained by the purchasers, as they contend, to cover the cost of completing the 1905 Cox contract, then only partially performed; or whether that sum was part of the consideration for the sale to Gilfillan and Neill, to be paid without regard to the Cox contract; and whether plaintiffs paid Cox for the services performed by him in completing the same--are questions as to which much of the conflicting testimony taken before the commissioner and by him returned as part of his report relates.
His findings, adverse to the contentions of the plaintiffs as regards these inquiries, based on such testimony, the trial court, hearing the case in lieu of a jury by agreement of the parties approved and entered judgment thereon.
Was the account of March 20, 1906, an "account stated," within the legal meaning of that term? That the answer to this interrogatory may more readily be comprehended and its significance and scope understood, it is necessary to note that, although the purchasers acquired the property and business as of February 1, 1906, they did not personally assume the control and management thereof until April 10th of that year; and that, by some understanding or agreement between them and plaintiffs the purport and terms of which are not fully disclosed, the Hoover-Dimeling Lumber Company continued to conduct the business of manufacturing timber into lumber and marketing the product in the same manner and to the same extent as it had done prior to February 1, 1906. They collected the proceeds derived from such operations, paid all the expenses thereof, and performed such other services and functions as are incidental to the management and conduct of enterprises of that character. They undertook to account therefor to the purchasers as of the date the latter entered into active control of the property and business purchased. By an amendment, plaintiffs enlarged the original bill of particulars so as to include the items claimed by them as charges against the defendant to that date.
As to these additional items, the account, of course, did not fall within the meaning of a stated account. To constitute an account stated, there must have been a settlement satisfactory to the parties interested, and concurrence by them in the result thereof, and a promise by the debtor, express or implied, to pay the balance so ascertained to be due. The meeting of minds is as essential to the existence of an account stated as such concurrence is in any other agreement. Both must assent to the correctness of the account and the balance due. Such we find to be the essential prerequisites of an account stated. Robertson v. Wright, 17 Grat. (58 Va.) 534; McNeel v. Baker, 6 W. Va. 165; McCarty v. Chalfant, 14 W.Va. 531; McGraw v. Bank, 64 W.Va. 510, 63 S.E. 398; Camp v. Wilson, 97 Va. 265, 274, 33 S.E. 591.
As defined in 1 Rul. Cas. Law, 207, an "account stated" is "an account which has been rendered by one to another, containing the balance which is alleged to be due, which balance is assented to or admitted to be a correct account of the debt it represents as due from the debtor." Or, as defined by 1 Corpus Juris, 678, "an account stated is an agreement, between parties who have had previous transactions of a monetary character, that all items of the account representing such transactions and the balance struck are correct, together with a promise express or implied for the payment of such balance."
Viewed only in the light of plaintiffs' testimony, the account sued on may be an account stated within the definitions stated by these authorities. The witnesses introduced by them testify that defendant examined each of the items constituting the account and consented to the correctness of the balance ascertained. If that be true, thence arose an implied promise to pay it. But the evidence to the contrary renders doubtful the question whether either Gilfillan or Neill intended or understood the account to have the effect of an...
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