Meridianal Co. v. Moeck

• Citation: 253 P. 525,121 Or. 133
• Parties: MERIDIANAL CO. v. MOECK. [a1]
• Decision Date: 01 March 1927
• Court: Supreme Court of Oregon

253 P. 525

121 Or. 133

MERIDIANAL CO. v. MOECK. ^[a1]

Supreme Court of Oregon

March 1, 1927

Department 2.

Appeal from Circuit Court, Columbia County; James Eakin, Judge.

Action upon an account stated by the Meridianal Company against George F. Moeck, Jr. Judgment for plaintiff, and defendant appeals. Affirmed.

G. E. Hamaker, of Portland, for appellant.

Robert C. Wright, of Portland, for respondent.

BEAN J.

This is an action upon an account stated. The cause was tried to the court and a jury, and a verdict rendered in favor of plaintiff. From a resulting judgment, defendant appeals.

The plaintiff alleges, in addition to its corporate character, in substance: That the defendant, George F. Moeck, Jr., and one Fred Trow had transactions with each other relating to the purchase by the defendant of goods and merchandise from Trow and about January 1, 1919, said Fred Trow rendered and delivered to defendant an account stated, covering said transactions, wherein and whereby said Trow stated and exhibited a demand of and upon the defendant for a balance of $594.64, then and there fixed as due and payable by defendant to said Trow. The defendant assented to said account stated as correct, and agreed to pay the said balance to said Trow about the 1st of January, 1919. The defendant also assented in writing to said account stated in the sum mentioned as being correct about April 15, 1922, and June 3, 1922, after demand upon him for payment thereof, and promised to pay the same. That said Fred Trow died February 12, 1921, and, after due probate and final settlement of his estate, the account stated and right of action thereon became in due course the property of Alice V. Trow, his widow, as heir and devisee. Before commencement of this action, said Alice V. Trow assigned said account and right of action to plaintiff. That no part thereof has been paid.

The defendant first moved to make the complaint more definite and certain, and, upon the motion being denied, demurred to the complaint upon the grounds, among others, that it did not state facts sufficient to constitute a cause of action; that said action stated in the complaint had not been commenced within the time limited by law. The court overruled the demurrer, and the defendant answered, denying the substance of the complaint, and further alleged "that said action has not been commenced within six years, the time limited by law, * * * and that said purported cause of action stated in said amended complaint is barred by the provisions of section 6, Olson's Oregon Laws." The new matter of the answer was put in issue by a reply.

At the close of the testimony on behalf of the plaintiff, the defendant moved for a nonsuit, and assigns the refusal to grant the same as error. The testimony, on behalf of plaintiff, tended to show that about January 1, 1919, Fred Trow, by his clerk and bookkeeper, duly forwarded by mail to defendant, George F. Moeck, Jr., a statement of the balance of his account of $594.64, and that thereafter other statements of the same matter were forwarded to the defendant in the same manner; that the defendant never objected or questioned the account, and thereby assented to the same; that April 15, 1922, the defendant wrote a letter to the attorney, who had the account stated in charge, in answer to a letter in which the defendant stated: "I know there is due the Trow estate $594.64, and can only say I will do my best to take care of this as soon as possible." This letter was signed by defendant and received by the attorney. The jury was warranted in concluding that the words "take care of this," in the letter, meant that defendant would pay the account.

Apparently during the same year, the date not being proved, the defendant wrote a letter to the same attorney in reply to one received by defendant, stating that he would do all he could to square the bill as soon as he could. The defendant, in support of the demurrer to the complaint, invoked the rule laid down in the case of Foste v. Ins. Co., 26 Or 449, 452, 38 P. 617, where the court said:

"The material allegations in an action on an account stated, are: (1) That plaintiff and defendant came to an accounting together; (2) that on such accounting defendant was found indebted to the plaintiff in a specified sum, (3) which defendant promised to pay, (4) and has not paid."

Tested by this rule, although the complaint is in a different language, we think that, in substance, it conforms thereto, and that, after the defendant has answered over, and after verdict and judgment, the complaint should be held to be sufficient.

It appears from the testimony that in 1917 there was a payment upon the account by defendant of $24 made to Fred Trow; that thereafter, on or about January 1, 1919, the account was stated.

The defendant seeks to maintain that the statute of limitations commenced to run before the last date mentioned, claiming there was an account stated prior to that time. The statements in regard to the account made prior to the date mentioned were a different account. The record does not show that the account in question became stated until within a reasonable time after, about January 1, 1919.

Fred Trow rendered an account to the defendant, George F. Moeck Jr., of the balance that was due to Trow from Moeck for goods and merchandise. The defendant failed to object thereto, and by implication of law assented to the account as stated. It was then in the nature of a new promise, but the consideration of the promise was the stating of the account. The original account became the consideration for the agreement, and it was not necessary to prove the items of such account. The account stated is founded upon the...