Loventhal v. Morris
| Decision Date | 22 May 1894 |
| Citation | 103 Ala. 332,15 So. 672 |
| Parties | LOVENTHAL ET AL. v. MORRIS. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Limestone county; H. C. Speake, Judge.
Action by B. S. Loventhal & Son against Hassie L. Morris on a stated account. There was a judgment for defendant, and plaintiff's appeal. Affirmed.
Issue was joined upon the plea of the general issue, and upon the special pleas of the statute of limitations of three years and the statute of limitations of six years. On the trial on the case, as is shown by the bill of exceptions, the plaintiffs introduced in evidence the following statement of their account with the said defendant, which was verified by the affidavit of B. S. Loventhal:
Mr. H L. Morris, in account with B. S. Loventhal & Son, 300 N Market Str.
Jan. 28. By cash .... 20 00
Feb. 20. By cash .... 20 00
Mch. 19. By cash .... 10 00
Apl. 5. By cash .... 10 00
Nov. 21. By cash .... 15 00
Dec. 17. By cash .... 50 00
------- $1,258 30
---------
B. S. Loventhal, as a witness for the plaintiffs, testified that the verified account introduced in evidence was correct, and that he, on October 25, 1887, rendered a statement of said account sued on, and presented it to the defendant, and that the defendant did not dispute the correctness of the same. This witness further testified that at, the date of the purchase of each bill, as shown in the stated account, he rendered to the defendant a statement of each item comprising the indebtedness, and that the defendant never made objection to any of the said statements. He further testified that the defendant visited the plaintiffs' place of business in Nashville on August 5, 1887, and that at that time he, the witness, presented to the defendant, for payment, the account sued on, and the defendant then and there admitted the justness of the same. The defendant, as a witness in his own behalf, testified that the "plaintiffs had never rendered to him any account against him for payment, at any time or place nor was he informed of the amount claimed of him by plaintiffs until this suit was brought." The other facts are sufficiently stated in the opinions. Upon the introduction of all the evidence the plaintiffs requested the following written charges: (1) "If you believe the evidence, you must find for the plaintiffs." (2) "If you believe from the evidence that on, to wit, August 5, 1887, the defendant visited the plaintiffs' place of business at Nashville, and at that time the plaintiffs presented to the defendant for payment the account here in suit, and the defendant then admitted the justness of the account, then you must find for the plaintiffs." (3) "If the jury believe from the evidence that a bill of each article sold was furnished by plaintiffs, giving each article and price of each article, and the amount of each bill purchased, and the date of purchase, that makes it an account stated, unless the defendant objected to the bill as rendered within a reasonable time." The court refused to give each of these charges, and to each refusal the plaintiffs separately excepted. They also separately excepted to the court's giving, at the request of the defendant, each of the following written charges: (1) "The fact that the defendant could have found out, if he had tried, the amount of the account, does not make it a stated account." (2) "The amount here in suit must be found to have been admitted or recognized by the defendant before you can render a verdict against the defendant."
McClellan & McClellan, for appellee.
Plaintiffs, Loventhal & Son, sued the defendant upon a stated account, to recover $155. The complaint contains five counts, each counting for the same amount, and all upon a stated account, averring different times at which it is alleged the account was stated between the parties, the last being the 15th day of November, 1887. The account sued upon as a stated account appears in the statement of facts, and will show for itself. An open account is one in which some item in the contract is left open, undetermined by the parties, or where there are current dealings between the parties, and the account, because of contemplated future dealings, is kept open. Whether the account consists of a single item or many items, if the terms of the contract have not been adjusted and agreed upon, the demand is an open account. Battle v. Reid, 68 Ala. 149; Gayle v. Johnston, 72 Ala. 254. An account becomes stated when a specified indebtedness is admitted to be correct The mere admission of indebtedness alone will not render an account stated, but the admission must be of the sum charged, and claimed to be due. The omission may be express, or it may arise by implication of law, as where an account is rendered to a debtor, and he retains it, and makes no objection within a reasonable time. Nooe's Ex'r v. Garner's Adm'r, 70 Ala. 443; Burns v. Campbell, 71 Ala. 271; Hirschfelder v. Levy, 69 Ala. 351; Rice v. Schloss, 90 Ala. 416, 7 So. 802; Langdon v. Roane's Adm'r, 6 Ala. 527; Ryan v. Gross, 48 Ala. 374; Goodwin v. Harrison, 6 Ala. 438. These decisions of our own state are conclusive that an account where there are debits and credits, does not become stated until there has been an adjustment, and an assent to the conclusion. In 1 Amer. & Eng. Enc. Law, p. 110, it is said: ' And on page 113: "To make an account stated, there must be a mutual agreement between the parties as to the allowance of their respective claims, and to establish such an account *** there must be proof of assent to the account as rendered." In the case of Volkening v. De Graaf, 81 N.Y. 268, opinion by Folger C.J., the principle is very fully and clearly stated. The court says: . ." When suit is upon an account stated, no proof is required to show the correctness of the items of the account. The recovery is upon the assent to the balance, and the subsequent agreement to pay that balance, as if upon a promissory note. As was said in Goodwin v. Harrison, supra: Now, compare the account sued upon with the several counts of the complaint, and apply the foregoing principles of law to the evidence. There is no pretense that the account sued upon as a stated account, or any other account, at any time, showing a balance of $155, or any account whatever of debits and credits, showing any balance, was ever rendered to the defendant; much less one either expressly or impliedly assented to, and agreed to be paid, by him. Balancing an account on one's own books, done without the consent of the other party, is not a stated account in law. Nostrand v. Ditmis, 28 N.E. 27.
The argument based upon the proposition that the complaint does not aver any particular time when the account was stated, but only when...
To continue reading
Request your trial
-
Julian v. Woolbert
... ... Judd Sons & Co., 20 Ala ... 703; Bradford v. Spyker's Adm'r, 32 Ala ... 134, 143; Ware v. Manning, 86 Ala. 238, 5 So. 682; ... Loventhal & Son v. Morris, 103 Ala. 332, 341, 15 So ... The ... amendment made as real respondent to the record, against whom ... [81 So. 35] ... ...
-
Stewart v. St. Louis & Suburban Ry. Co.
...certain sum was then due from him as a debt." To like effect 2 Greenleaf on Evidence, section 126, is also quoted. In Loventhal & Son v. Morris, 103 Ala. 332, 15 So. 672, is held (l. c. 336) that, "An account becomes stated when a specified indebtedness is admitted to be correct. The mere a......
-
Ingalls v. INGALLS IRON WORKS COMPANY
...expressed or implied, so that the demand is essentially the same as if a promissory note had been given for the balance." Loventhal v. Morris, 103 Ala. 332, 15 So. 672.\' Moore v. Holdoway, 138 Ala. 448, 35 So. "`In order to create a stated account, there must not only be a meeting of the m......
-
Denson v. Kirkpatrick Drilling Co., 6 Div. 993.
... ... Co., 99 Ala. 47, 10 So. 327; Rice v. Schloss & ... Kahn, 90 Ala. 416, 7 So. 802; Lott v. Mobile ... County, 79 Ala. 69; Loventhal & Son v. Morris, ... 103 Ala. 332, 15 So. 672 ... To ... raise a presumption of delivery of a letter to a particular ... person, it is ... ...