Kent v. Highleyman

• Decision Date: 17 March 1885
• Parties: A. E. KENT ET AL., Appellants, v. S. L. HIGHLEYMAN, Respondent.
• Court: Missouri Court of Appeals

17 Mo.App. 9

A. E. KENT ET AL., Appellants,

v.S. L. HIGHLEYMAN, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 17, 1885.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and remanded.

GIVEN CAMPBELL and J. O'NEILL RYAN, for the appellants: Where there has been an account examined and accepted by both parties the account becomes an account stated. This may be implied from circumstances. Keeping it any length of time without objection binds the debtor.-- Brown v. Kimmel, 67 Mo. 431; Lockwood v. Thorne, 11 N. Y. 173. An account rendered and not objected to in a reasonable time is to be regarded by the party charged to be prima facie correct, and if certain items are objected to and others are not the latter are covered by such admissions.-- Wiggins v. Burkham, 10 Wall. 129; Chisman v. Count, 2 M. & G. 307.

FRANK J. BOWMAN, for the respondent.

THOMPSON, J., delivered the opinion of the Court.

In this action the plaintiffs seek to recover a balance alleged to be due upon an account stated. There was evidence tending to prove that, on or about October 30, 1882, the plaintiffs had rendered to the defendent a copy of the account sued on, and that the defendant had made no objection thereto until the bringing of this suit in June, 1883. As appropriate to this evidence the plaintiffs requested the following instruction: “The court instructs the jury that if they find that plaintiffs, on or about October 30, 1882, rendered to defendant a copy of the account sued on, and that defendant made no objection to said account until the bringing of this suit in June, 1883, that then the defendant, by permitting such time to elapse without objection to said account, admitted the correctness of the same; and the jury will find a verdict for plaintiffs for the amount sued on with interest from October 30th, 1882, to date, at the rate of six per cent. per annum.” This instruction the court refused to give, but gave of its own motion several instructions touching the plaintiffs' hypothesis of an account stated, in all of which the right of the plaintiffs to recover the balance claimed in their account, as upon an account stated, was made to depend upon a promise by the defendant to pay the same. The jury could only understand this language as referring to an express promise. These rulings were therefore erroneous. The theory of an account stated is, that the parties have accounted together, agreed upon a balance, and that the debtor has promised to pay it; and, accordingly, it is necessary for the plaintiff, in declaring upon an account stated, to allege that the defendant promised to pay the balance so found to be due.-- Brown v. Kimmel, 67 Mo. 430; Cape Girardeau, &c., R. Co....