Moore v. Maxwell & Delhomme

• Citation: 46 So. 755,155 Ala. 299
• Parties: MOORE v. MAXWELL & DELHOMME.
• Decision Date: 14 May 1908
• Court: Supreme Court of Alabama

46 So. 755

155 Ala. 299

MOORE v. MAXWELL & DELHOMME.

Supreme Court of Alabama

May 14, 1908

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action on an account stated by Maxwell & Delhomme against Terry L Moore. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Smith Foster & Smith, for appellant.

Fitts Leigh & Leigh, for appellees.

ANDERSON J.

In order to create a stated account, there must not only be a meeting of the minds as to the correctness of the statement, but there must be a promise by the debtor, express or implied, for the payment of same. 1 Am. & Eng. Ency. of Law, 437; 1 Cyc. 364. An account becomes stated only when a specified indebtedness is admitted to be due from the debtor to the creditor. Loventhal v. Morris, 103 Ala. 335, 15 So. 672. The mere admission that the items of an account are correctly stated is not sufficient, unless it appears that the debtor expressly or impliedly agreed to pay it. Ryan v. Gross, 48 Ala. 375. It is true that, if one renders another an account, which he promises to pay or which he retains without objection, it becomes a stated account, because of an express promise to pay in the first instance, or of an implied promise in the second, arising out of a retention of same without objection; but the mere admission of the correctness of the items of an account, with a denial of liability, would not make it an account stated. In other words, in order to render one liable as upon an account stated, he must not only admit its correctness, but must expressly or impliedly admit his liability.

There is no pretense in the case at bar that the account in question was rendered to the defendant, or that he in any way admitted the correctness or acknowledged his liability for same. The plaintiffs rely merely upon an account rendered to Biggers, who admitted its correctness. It is true Biggers testified that the defendant gave him authority to purchase the material, which, if true, would render the defendant liable upon an open account or for material sold; but a subsequent admission by Biggers, without the authority or knowledge of the defendant, of the correctness of the account, would not render him liable upon an account stated. The account was never presented to him, and it would be a legal absurdity to hold that the subsequent conduct of Biggers amounted to a new or subsequent promise on the part of the...