Merritt v. Meisenheimer

• Decision Date: 17 February 1915
• Docket Number: 12005.
• Citation: 146 P. 370,84 Wash. 174
• Parties: MERRITT et al. v. MEISENHEIMER.
• Court: Washington Supreme Court

146 P. 370

84 Wash. 174

MERRITT et al. v. MEISENHEIMER.

No. 12005.

Supreme Court of Washington, En Banc.

February 17, 1915

Appeal from Superior Court, Spokane County; J. Stanley Webster Judge.

Action by J. W. Merritt, Seabury Merritt, and Hugo S. Oswald copartners doing business as Merritt, Oswald & Merritt against Allen Meisenheimer. From a judgment for plaintiffs defendant appeals. Reversed and remanded.

Mount, J., dissenting.

Zent, Powell & Redfield, of Spokane, for appellant.

Graves, Kizer & Graves and Merritt, Oswald & Merritt, all of Spokane, for respondents.

CHADWICK J.

This purports to be an action upon a stated account. The plaintiffs are copartners engaged in the practice of law at the city of Spokane, and the defendant is a resident of Spokane county. The complaint avers that prior to the 1st day of December, 1912, the defendant became indebted to the plaintiffs for services performed and moneys paid out and expended in his behalf; that an open running account was kept between the plaintiffs and the defendant; that on the date last mentioned the plaintiffs prepared and mailed to the defendant a full and complete itemized statement of such account; that this statement was received by the defendant in due course of mail; that a like statement was mailed to the defendant on the 1st day of August, 1913, and again on the 1st day of October, 1913, copies of which several statements are attached to the complaint as exhibits; that from the time of the receipt of such statements the defendant made no objection thereto, but acquiesced therein until payment was demanded on the 18th day of November, 1913, when the defendant objected to the amount claimed and refused to pay the same. A demurrer was interposed to the complaint, but the demurrer was overruled, and an exception allowed. The defendant then answered over. The original answer was superseded by an amended answer during the trial, to which brief reference will be made in the course of the opinion. The case came on for trial before a jury. The plaintiffs offered evidence tending to show the rendition of the account as alleged and the failure of the defendant to object thereto, although the several plaintiffs had repeatedly met and conversed with the defendant since the rendition of the account. At the close of the plaintiffs' testimony the defendant challenged its legal sufficiency and moved for a judgment in his favor. It was then agreed that the entire law applicable to the case should be discussed by counsel and settled by the court before further proceeding. At the close of the argument the court ruled, in substance, that the account rendered by the plaintiffs became an account stated by reason of the failure of the defendant to object thereto within a reasonable time; that such an account could only be impeached for fraud or mistake; and that the original answer was insufficient to raise either of these defenses. An amended answer was thereupon filed by leave of court, which denied that the defendant agreed to the statement as rendered or acquiesced therein, set forth 22 errors in the account, and interposed affirmative defenses to several of the principal items. The plaintiffs confessed a number of the errors thus pointed out in the answer, and the court again ruled that the amendment answer was insufficient to impeach the correctness of the account in other respects. Whereupon the jury was discharged, and a judgment rendered against the defendant for the full amount claimed, less the several items confessed by the plaintiffs. From this judgment the defendant has appealed.

The judgment of the court below is erroneous for two reasons: First, because the complaint does not state facts sufficient to constitute a cause of action; and, second, because the amended answer sufficiently challenged the correctness of numerous items in the account.

An 'account stated' is an agreed balance of accounts, whether that agreement be expressed or implied, and the party who elects to base his action on an account stated must allege that the account was in fact stated or agreed to. He may not limit himself to a mere statement of collateral facts from which the ultimate fact may or may not follow. As said by the court in Emery v. Pease, 20 N.Y. 62:

'The pleader has set forth some matters of evidence having perhaps a slight tendency to prove that the account had been taken and the balance due to the plaintiff ascertained by the parties according to the principles of the agreement between them. But he seems carefully to have avoided the very conclusion of fact which alone would justify a suit for the recovery of an ascertained and admitted balance, to wit, that the parties had stated the account and that the statement thus made showed there was due to the plaintiff the sum which he claimed to recover. The averment that the plaintiff had made a statement and delivered it to the defendant, who made no objections to it, does not necessarily establish the required conclusion, even if it has a tendency in that direction; and consequently we cannot hold that the fact of an account stated between these parties has been pleaded in any manner or form. We are required, and we are always inclined, to give a liberal and benign construction to pleadings, under the present system; but if a party either ignorantly or willfully will omit the very fact on which his case depends, and will content himself with averring evidence inconclusive in its nature, he must take the consequences of his error if objection be made at the proper time.'

See, also, St. L. L. B. B. Co. v. Col. Nat. Bank, 8 Colo. 70, 5 P. 800; McKenzie v. Poorman Silver Mines of Colorado, 88 F. 111, 31 C. C. A. 409.

Ordinarily we would not inquire into the sufficiency of a complaint after trial, where the defect is curable by amendment; but, when the court grants a judgment on the pleading because the answer presents no issue upon a complaint which itself sets forth no issuable fact, the error becomes at once apparent. Furthermore, the answer denied, that the defendant agreed to the statement or acquiesced therein, and the complaint charged little beyond this. McKenzie v. Poorman, etc., supra.

We also think the correctness of several items of the account was sufficiently challenged by the answer. The court below seems to have been of opinion that it was incumbent on the defendant to show fraud or mistake in the settlement or statement of the account and that it was not sufficient to charge fraud or mistake in the account itself. Such, however, is not the rule. Indeed, how could fraud or mistake be shown in the settlement or statement of an account when the parties never met together or discussed the matter in hand? The only effect of the failure of a party to interpose objection to an account rendered is to shift the burden of proof. The mere rendition of a bill for services, although time may elapse, will not in itself make an account an account stated.

'The mere rendition of an account by one party to another does not show an account stated. There must be some form of assent to the account; that is, a definite acknowledgment of an indebtedness in a certain sum.' Shaw v. Lobe, 58 Wash. 219, 108 P. 450, 29 L. R. A. (N. S.) 333.

An account rendered and unobjected to is prima facie evidence of the correctness of the account, and, if not overcome by other circumstances excusing the omission of the debtor, it may be an account stated.

'The presumption of conclusiveness which attaches to an account stated is one of evidence, and the extent of the application of the foregoing principles cannot be resolved into the statement of an unalterable rule which will cover all cases. Thus, mere acquiescence after the rendition of an account may be sufficient to bind one as upon an account stated, and while this species of proof is said to be far from conclusive, though sufficient in the absence of contradictory evidence, yet the question is one merely of evidence, and at most an express admission is but stronger proof of correctness requiring stronger proof of mistake, and payment of the balance ascertained is but stronger proof than these requiring perhaps still stronger proof in rebuttal. In neither case, however, would the parties be precluded from giving evidence to impeach the account in the absence of an intervening estoppel or obligatory agreement; the force of the admission and the strength of the evidence necessary to overcome it always depending upon the circumstances of each case.' 1 Cyc. 456.

'In regard to acquiescence in stated accounts, although it amounts to an admission or presumption of their correctness, it by no means established the fact of their having been settled, even though the acquiescence has been for a considerable time. There must be other ingredients in the case to justify the conclusion of a settlement.' 1 Story's Equity, Jurisprudence (13th Ed.) § 528; 1 Corpus Juris. 692; 1 Cyc. 456; Abbott's Trial Evidence, p. 568; Wharton's Law of Evidence, § 1140; Jones on Evidence, § 287; Shaw v. Lobe, 29 L. R. A. (N. S.) note p. 348.

We shall not attempt to assemble or review the authorities. They are 'thick as autumnal leaves, * * * in Vallombrosa.'

A failure to object to an account rendered does not admit the correctness of the account so as to make it a binding unimpeachable obligation. There may be cases which hold that this is so; but, by better authority, we may say that it is almost universally so held, in the absence of circumstances which would create an estoppel, the reception of the account raises no more than a presumption of assent on the part of the debtor which may be...