Reed v. Robinson

• Decision Date: 16 April 1925
• Docket Number: 8 Div. 737
• Citation: 213 Ala. 14,104 So. 130
• Parties: REED v. ROBINSON.
• Court: Alabama Supreme Court

104 So. 130

213 Ala. 14

REED v. ROBINSON.

8 Div. 737

Supreme Court of Alabama

April 16, 1925

Appeal from Circuit Court, Madison County; James E. Horton, Jr. Judge.

Action on account stated by C.W. Robinson against J.S. Reed. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Cooper & Cooper, of Huntsville, for appellant.

Lanier & Pride, of Huntsville, for appellee.

THOMAS J.

The suit is sought to be maintained on a stated account.

The second count averred that the sum claimed was "on account stated, between plaintiff and defendant on the 30th day of March, 1923, which sum of money with interest thereon is still unpaid." Its due date is not specifically averred.

It has been declared in our decisions that an account stated is an assent to the balance, express or implied; so that the demand is essentially the same as if a promissory note had been given for the balance. Ivy Coal & Coke Co. v. Long, 139 Ala. 535, 36 So. 722; Comer & Co. v. Way &amp Edmundson, 107 Ala. 300, 19 So. 966, 54 Am.St.Rep. 93; Loventhal & Son v. Morris, 103 Ala. 336, 15 So. 672. The authorities do not recognize the distinction contended for in appellant's argument--a distinction between stated accounts which "have been merely assented to and agreed to be paid and those which have taken the form of a settlement by express written promise to pay an ascertained balance." Cudd v. Cowley, 203 Ala. 665, 85 So 13. A statement of account becomes a "stated account," with its legal consequences, when "it is actually placed in the hands of the party to be charged, and with knowledge of its purport" he expressly assents to the balance, or that acquiescence is implied. McCarty v. First Nat. Bank, 204 Ala. 424, 85 So. 754, 15 A.L.R. 153.

The testimony for appellee tended to show that O.H. Crick was employed by appellee and sold appellant a bill of lumber at the time McKee was building a house for the latter; that, after the "lumber was delivered to the appellant," the witness Crick saw him and he [Crick] had "an itemized statement of the account" with him "at that time." (A copy of said statement was introduced in evidence.) The witness testified:

"Mr. Reed said, when I carried him this account, that he would have to get Mr. McKee to check it and O.K. it. Mr. McKee did check it and O.K. it, and I carried it back to Mr. Reed, who said he would tend to it in a few days, that he wanted a little more time--wanted to hold his cotton a little longer."

The testimony tending to show delivery of the lumber to defendant's place or building on order by "McKee or some of his workmen" (Redd Bros. v. Todd, 209 Ala. 56, 95 So. 276), the checking of the account by McKee at defendant's suggestion, the demand for the itemized statement of the account, and the failure to produce the same in court, rendered the "copy of the statement" or the original loose-leaf ledger entries thereof (Shepherd v. Butcher T. & H. Co., 198 Ala. 275, 73 So. 498)...