Leonard v. Greenleaf.

• Decision Date: 16 November 1915
• Docket Number: No. 1791.,1791.
• Court: New Mexico Supreme Court
• Parties: LEONARD ET AL.v.GREENLEAF.

21 N.M. 180

153 P. 807

LEONARD ET AL.

v.GREENLEAF.

No. 1791.

Supreme Court of New Mexico.

Nov. 16, 1915.

Syllabus by the Court.

An “account stated” is an account balanced and rendered, with an assent to the balance, express or implied, so that the demand is essentially the same as if a promissory note had been given for the balance.

All that is necessary to be shown, in order to sustain an action on an account stated, is the absolute, unqualified, unconditional, and voluntary admission by the defendant, or his agent, and the plaintiff, or his agent, before the bringing of the suit, of the existence of a specified sum of money as a present, existing debt, which admission may be express, or may be inferred from the conduct of the parties.

Appeal from District Court, Bernalillo County; Raynolds, Judge.

Action by W. C. Leonard and another against V. A. Greenleaf. Judgment for defendant. Plaintiffs appeal. Reversed and remanded.

W. C. Leonard and E. L. Washburn were members of a partnership in the city of Albuquerque, under the name of W. C. Leonard & Co., between the years 1888 and 1893. Greenleaf, the defendant herein, while a resident of the city of Albuquerque, opened an account with the said firm during the years referred to, and in the year 1893 left the state of New Mexico, remaining absent from the city of Albuquerque until about 1913, when he returned for a short time, but later returned during the summer of 1914, at which time this action was brought. By the amended complaint an action on an account stated was set up; defendant moving for a bill of particulars, and the plaintiff responding to an order of the court therefor by a showing in the form of an affidavit setting out the dates of sale of certain merchandise and the amounts thereof, without specifying the particular kind of merchandise sold. The bill of particulars thus furnished further recited the fact that the daybooks which were kept during the period of time covered by the statement of the account were destroyed many years previous, and that the entries included in such bill of particulars were ledger entries, which had been transferred from the daybooks. The showing thus made was by the bookkeeper for the firm of W. C. Leonard & Co. at the time of the making of the entries included in said bill of particulars. Subsequently the defendant moved to make the bill of particulars more specific, asserting that the same failed to advise the defendant of what particular articles the merchandise consisted, and did not apprise the defendant with sufficient certainty of what the alleged indebtedness consisted. The trial court ordered a more specific bill of particulars, requiring that the same should specify the particular kind of merchandise alleged to have been sold and delivered to the defendant by the plaintiff upon which the “alleged account stated is predicated.” Pursuant to said order for a more specific bill of particulars, the plaintiff again made a showing by affidavit as to their alleged inability to make a more specific bill of particulars (other than to say that the same was for gentleman's wearing apparel), assigning as reasons for such inability that the daybooks from which the ledger entries had been taken had been lost or mislaid, and that after diligent search the plaintiff was unable to find the same. The defendant subsequently moved to strike the paper filed by plaintiffs, in compliance with the order of the court requiring plaintiffs to furnish to defendant a more specific bill of particulars, from the files, and to dismiss the suit for failure to comply with said order, which motion was sustained, and the cause was dismissed at the cost of plaintiff for failure to prosecute the same in accordance with the order of the court referred to, from which judgment the plaintiff prayed and was granted an appeal to this court.

To sustain an action on an account stated, it is essential to show only an absolute and voluntary admission express or implied, by defendant and plaintiff, or their agents, before bringing suit, of the existence of a specified sum as a present existing debt.

Laurence F. Lee, of Albuquerque, for appellants.

E. W. Dobson and H. C. Miller, both of Albuquerque, for appellee.

HANNA, J. (after stating the facts as above).

The assignments of error raise substantially two questions--the first being whether the original items of an account, which go to make up an account stated, can be inquired into by demand and allowance of a bill of particulars after the account has been converted into an account stated; and, second, what constitutes a sufficient bill of particulars. Appellee contends that the first question is not presented for our consideration because no proper exception was taken to the order of the court ordering the bill of particulars. While this is technically correct, it does appear that after plaintiff had made a showing as to its inability to furnish more particular information than that tendered, and the subsequent order had been made ordering a more specific bill of particulars, the plaintiff did except to the second order requiring it to furnish a more specific bill of particulars, and we deem that this is sufficient for the purpose of questioning the right of the trial court to make the order referred to.

[1][2] An account stated has been defined by numerous courts and text-writers, and a great diversity is to be found in these numerous definitions. In 1 R. C. L. 207, an account stated is said to be:

“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.”

Still another definition to be found in the same work, and which more closely applies to the facts of the present case, is as follows:

“An account stated is an account balanced, and rendered, with an assent to the balance, express or implied, so that the demand is essentially the same as if a promissory note had been given for the balance.” Comer v. Way, 107 Ala. 300, 19 South. 966, 54 Am. St. Rep. 93.

The assent to the balance found to be due by the account stated, which may be an express promise, or one implied as a legal conclusion from a failure to object thereto within a reasonable time, creates a new and independent cause of action, arising from the agreement, express or implied, and a legal obligation is established, irrespective of the items or constituents of the previous ground of liability....