Mayes County Milk Producers Ass'n v. Hunter

• Decision Date: 22 October 1957
• Docket Number: No. 37565,37565
• Citation: 1957 OK 252,317 P.2d 736
• Parties: MAYES COUNTY MILK PRODUCERS ASSOCIATION, Inc., a Corporation, and O. J. Miller, Plaintiffs in Error, v. Clyde HUNTER and John Cordell, co-partners, d/b/a Hunter Agency, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 736

317 P.2d 736

1957 OK 252

MAYES COUNTY MILK PRODUCERS ASSOCIATION, Inc., a Corporation, and O. J. Miller, Plaintiffs in Error, v. Clyde HUNTER and John Cordell, co-partners, d/b/a Hunter Agency, Defendants in Error.

No. 37565.

Supreme Court of Oklahoma.

Oct. 22, 1957.

Syllabus by the Court

1. In the present case, where plaintiffs' cause of action against defendants was tried as an account stated; Record examined and Held: The evidence sufficiently showed previous transactions between the parties that plaintiffs, rather than the insurance companies for whom they acted as agents, were the parties entitled to maintain the action; that the account balance sued for was the one assented to; that a statement of said account was rendered and retained, without objection, for a sufficient period to imply assent to its correctness (without proof on any express promise by defendants to pay said balance) for submission of the case to the jury.

2. Where plaintiffs' cause of action on an account was tried as an 'account stated' and there was nothing to indicate prejudice to defendants therefrom, this court, on appeal, would, under the circumstances, treat plaintiffs' petition as having been amended to conform to the proof.

3. The character of an action may be governed more especially by the evidentiary issues joined therein, than by the allegations of the pleadings; and, where an action on an account is tried specifically as an account stated, it is not error for the trial judge, in instructing the jury, to refer to it as such; and, as in the present case, this may be done without any assumption, or representation, that the evidence has established such a cause of action.

4. As defendants' assent to plaintiffs' statement of an account may be either express or implied from their failure, for more than a reasonable time, to object to it, the trial court committed no error in giving its Instruction No. 3, rather than defendants' Requested Instruction No. 2.

Appeal from the County Court of Mayes County; Carl W. Longmire, Judge.

Action by plaintiffs to recover a certain sum as the balance of premiums due for insurance furnished defendants. After verdict and judgment for plaintiffs, defendants appealed. Affirmed.

Wilkerson & Wilkerson, Pryor, for plaintiffs in error.

Ernest R. Brown, Pryor, for defendants tiffs in error.

BLACKBIRD, Justice.

In the trial court, defendants in error obtained a verdict and judgment as plaintiffs, against plaintiffs in error, as defendants, for the sum of $637.32, as the balance allegedly due said plaintiffs by said defendants for insurance furnished defendants through plaintiffs' insurance agency. After the overruling of defendants' motion for a new trial, they perfected the present appeal. Where not otherwise referred to, our continued reference to the parties will be by their trial court designations.

The case was tried as if the above-named balance arose out of an account stated. It was plaintiffs' theory that defendants became bound to pay them said sum, after Clyde Hunter, one of the co-partners in the plaintiff insurance agency, sent the defendant, O. J. Miller, President and Manager of the defendant Milk Producers Association, a letter dated October 15, 1954, requesting payment of several amounts totalling that sum, and itemized as premiums due on various policies of insurance the Association had assertedly been carrying through plaintiffs' agency, plus one item of more than $200 billed as deposit for the renewal of the Standard Insurance Company's Workmen's Compensation & Employer's liability policy No. C5529, which item, due to said policy's cancellation, was later deducted from the first total submitted. It was plaintiffs' theory that after they had rendered said statement of the account, defendants, by their conduct, including their failure to protest the other premiums therein represented as due and delinquent, in effect, accepted as correct, and agreed to pay, their total, as the correct balance due on said account.

Plaintiffs' witness, Clyde Hunter, testified that on a certain occasion, not long after the letter was written, 'approximately' October 20th, in a conversation at the Producers Association's office, Mr. Miller told the witness and his partner, Mr. Cordell, to cancel the workmen's compensation policy; apprised them of the fact that the Association 'had a lot of uncollected accounts and he couldn't pay us'; and immediately followed this with the statement that 'he would call and try to work out a settlement.' Evidence was also introduced to show that before, as well as after, said occasion, plaintiffs mailed the defendant Association more than one monthly statement of each policy premium making up the total sued for, and that, on December 1, 1954, they mailed it a statement reflecting the balance of $637.32, due them (after deduction of the deposit formerly claimed for the cancelled policy) all without protest, or any claim being made by defendants that said amount did not represent the proper total, or correct balance, due on said account.

On behalf of the defendants, Mr. Miller admitted receiving the aforesaid December, 1954, statement, but denied receiving any statements before that one, and specifically denied he ever received the afore-described letter of October 15, 1954.

The largest item of the account was the premium on the aforesaid workmen's compensation policy for the period, September 14, 1953, to September 14, 1954, which said policy was introduced as Defendants' Exhibit 7, and which Mr. Miller testified that he, as Manager of the defendant Association, received through the mail 'around the 14th day of September, 1953.' Inclosed in the same envelope with the policy, and introduced as Defendants' Exhibit 9, was a card entitled 'Employer's Acceptance', which (according to a mimeographed 'Notice To Agent', also inclosed in the same envelope with the policy and introduced as Defendants' Exhibit 10, together with a note from plaintiffs' office introduced as Exhibit 8) was to be signed for the Association, as employer, and returned by it to plaintiffs' office for forwarding to, and filing with, The State Industrial Commission to show its workmen's compensation coverage. Mr. Miller testified that when he received this policy, and the other inclosures, he took no action thereon, did not sign, nor return, the acceptance card, and never claimed any insurance protection under said policy. In refutation of the latter, plaintiffs introduced as their Exhibit No. 10, an 'Employer's First Report of Injury', executed on behalf of the Producers Association by its Secretary-Treasurer under date of January 26, 1954. Although Mr. Miller denied that he had had the October, 1954, conversation with plaintiffs (that Hunter testified about) and further testified that the first time plaintiffs had ever talked to him personally about the matter was 'around December 10th, 1954', when, according to him, 'they wanted me to pay for the insurance and I said I didn't have any insurance'--in other portions of his testimony, Miller first stated that he asked plaintiffs to cancel his insurance 'around the first part of 1953', but later, on cross-examination, testified that defendants had 'paid up' the insurance they carried with plaintiffs 'till 1953, September 14, 1953.' (Emphasis ours.)

In argument under their Second Proposition, defendants call our attention to the fact that an 'account stated', as usually defined, contemplates that the parties to the account have had 'previous transactions', and they charge that, in this case, the evidence fails to show they were ever indebted to plaintiffs on any account. They rely particularly on the fact that the evidence fails to show that any specific policy of insurance was ever delivered to them by plaintiffs. However, in view of Mr. Miller's last above-cited testimony and other evidence tending to show 'previous (insurance) transactions' between the parties, and the further fact, that in an action on account stated, the agreed balance constitutes a new cause of action and renders unnecessary proof of an original obligation, or promise, of payment by the defendants, if at the time there appears to have been an indebtedness between the parties (Gladys Belle Oil Co. v. Clark, 147 Okl. 211, 296 P. 461, 465; Duerr v. Sloan, 40 Cal.App. 653, 181 P. 407; 1 Am.Jur., 'Accounts and Accounting', secs. 16, 26, 27,...