Johnson v. Gallatin Valley Milling Co.
| Decision Date | 02 January 1909 |
| Citation | 98 P. 883,38 Mont. 83 |
| Parties | JOHNSON v. GALLATIN VALLEY MILLING CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Gallatin County; E. K. Cheadle, Judge.
Action by Joseph Johnson against the Gallatin Valley Milling Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed and remanded.
Hartman & Hartman and H. M. Stewart, for appellant.
Walrath & Patten, for respondent.
In this action the plaintiff seeks to surcharge an account stated between himself and defendant and to recover an additional amount thereon, after payment and discharge of the balance found, for error and mistake not known to the plaintiff at the time of the settlement and receipt of payment. The transaction out of which the controversy grew may be stated briefly as follows: During the year 1906, the plaintiff entered into a written contract with the defendant to sell and deliver to it his entire crop of spring club wheat raised during that year, except a sufficient amount retained for seed for the following year, at the price of 52 cents per bushel. The plaintiff began to make delivery on November 5th and completed it on December 5th. Upon the delivery of each lot it was weighed by the defendant's agent in the presence of plaintiff or his teamster; triplicate scale tickets or receipts showing the weight being made out, one for plaintiff, and the others for use by defendant in keeping its accounts. When the last delivery was made, the plaintiff presented to the manager of the defendant his receipts and demanded payment of the amount due. On comparison of these with the copies retained by the defendant, they agreed with them in stating the number of bushels delivered and credited to the plaintiff on defendant's books. The plaintiff having in the meantime had advances of money and merchandise from defendant to the amount of $849, this amount was deducted from the total sum due, and plaintiff received defendant's check for the balance and receipted the account in full. The receipts showed a delivery of 2,603 1/2 bushels in all, and, assuming the weights to be correct the check, which was for $504.82 represented the correct balance due. The statement rendered and receipted at the time is as follows:
Belgrade Mont. Dec. 5, 1906.
Mr. Joe Johnson Check No.
2597
Voucher No. "
13 01 50 2,603 1/2 bu. Sp. Club 52c. $1,353.82
Less contra ac. 849.00
Check 504.82
Charge J. J.
Correct D. R. F.
Received of Gallatin Valley Milling Co. Five hundred four & 82"100 Dollars,
in full payment for above account.
Dated Dec. 5, 1906. Jos. Johnson.
It is alleged as the ground of the action: That the amount shown by the receipts to have been delivered was incorrect and erroneous, in that in fact plaintiff had actually delivered 3,463, instead of 2,603 1/2, bushels, and that therefore there was a shortage, to the disadvantage of plaintiff, of 859 1/2 bushels by error in defendant's account; that this error was due to the "defective, false, and erroneous weighing of said grain by defendant and its agents," and resulted in showing a balance of $504.82 due plaintiff, instead of $951.76, the correct balance; and that the error was not discovered by plaintiff until in March, 1907, whereupon he, through his attorneys, pointed it out to the defendant and requested it to make the correction and pay to plaintiff the amount still due, and that the request was denied. Judgment is demanded for $446.94. Defendant's answer puts in issue all the allegations of the complaint as to error or mistake by defendant in the weighing of the various lots delivered. It then sets forth as a special affirmative defense all the facts showing the sale and delivery as stated in the complaint, and alleges that upon the completion of the delivery plaintiff demanded a settlement of the account, and that a settlement was had, the balance ascertained, and payment made thereof; the plaintiff then and there, with full knowledge of the facts and of the condition of the account, receipting in full for such payment. The replication denies knowledge of the conditions as they actually existed at the date of the settlement. The court found: That the gross amount of the crop was 3,710 bushels; that plaintiff delivered to defendant 3,331 bushels being the gross crop less the amount retained for seed, fixed at 267 bushels, and 112 bushels deducted for shrinkage in weight from drying and cleaning; that plaintiff at the time of the settlement, on December 5, 1906, was entitled to credit for this number of bushels at 52 cents, the contract price, making the correct balance due him, after deducting $849 for advances, $883.30; that the error in the account resulting in credit to the plaintiff of 2,603 1/2, instead of 3,331, bushels, was due to the "defective, false, and erroneous weighing of said grain by defendant and its agents" during the time of delivery; that at the time of the settlement plaintiff was ignorant of the facts and did not discover them until after he had receipted the account in full; and that, as soon as he did discover the error, he made demand upon defendant for its correction, but the request was denied. Judgment was rendered and entered for plaintiff for the sum of $378.30, with interest at the legal rate from December 5, 1906. Defendant has appealed from the judgment and an order denying its motion for a new trial.
Counsel contend that the judgment and order should be reversed because the evidence is insufficient to sustain the findings (1) in that it does not appear therefrom that there was error or mistake in the weights shown by defendant's account, and (2) in that, even if such were the case, it appears that the plaintiff agreed to the account, accepted the balance shown by it, and receipted for it with full knowledge of any error made by defendant and of the facts and circumstances upon which he now relies to establish his right to recover.
A definition of what constitutes an "account stated" is not necessary to a decision of the questions here presented. It is alleged by plaintiff, and admitted by defendant, that the result of the meeting between them on December 5, 1906, was an ascertainment of the balance due from defendant upon a statement of their accounts and its discharge thereof by payment. We think, however, that the result was an account stated, within the rule of the decisions of this court in Martin v. Heinze, 31 Mont. 68, 77 P. 427, Noyes v. Young, 32 Mont. 226, 79 P. 1063, and Dorais v. Doll, 33 Mont. 314, 83 P. 884, as well as within the general definition laid down in 1 Cyc., at page 364, as follows: "In general terms, where an account is rendered by one person to another, showing a balance due from the one to the other, and the indebtedness thus expressed is acknowledged to be due by the person against whom the balance appears, or where parties having previous transactions agree upon a definite balance as due from one to the other, this will constitute an account stated."
The rules of law applicable to such cases as the present, wherein one of the parties seeks to avoid the settlement and reopen the account, are simple and of easy application. The balance ascertained from a statement of accounts was formerly held to be the result of so deliberate an act by the parties as to preclude an examination into the items for the purpose of correcting errors or mistakes; but this rule has been so far relaxed that, while the promise to pay the ascertained balance is in effect a new promise, the settlement being regarded as the consideration for it, the settlement does not create an estoppel, but furnishes a strong prima facie presumption that the result is correct. Martin v. Heinze supra; 1 Cyc. 451; Holmes v. De Camp, 1 Johns. (N. Y.) 34, 3 Am. Dec. 293; Gillett v. Chavez, 12 N.M. 353, 78 P. 68; Ware v. Manning, 86 Ala. 238, 5 So. 682; Crockett v. Maddy Bros., 57 W.Va. 66, 49 S.E. 1009; Langdon v. Roane's Adm'r, 6 Ala. 518, 41 Am. Dec. 60; Hendy v. March, 75 Cal. 566, 17 P. 702; Sutphen v. Cushman, 35 Ill. 186. The result, however, is none the less a contract, and the burden is cast upon the party seeking to avoid it and open up to investigation the antecedent dealings between the parties to allege in his pleadings the error, fraud, or mistake on which he relies, and to establish it by clear and satisfactory evidence. In addition to the cases cited, the following are also in point: Chappedelaine v. Dechenaux, 4 Cranch, 306, 2 L.Ed. 629; Klauber v. Wright, ...
To continue reading
Request your trial