Roach v. Gilmer

• Decision Date: 05 July 1884
• Citation: Roach v. Gilmer, 4 P. 221, 3 Utah 389 (Utah 1884)
• Court: Utah Supreme Court
• Parties: ROACH v. GILMER ET AL

4 P. 221

3 Utah 389

ROACH v. GILMER ET AL

Supreme Court of Utah

July 5, 1884

APPEAL from the third district court. The opinion states the facts.

Affirmed.

Arthur Brown, for the appellant.

A payment of a part of the sum which is conceded to be due in money can not be an accord and satisfaction for the whole sum: 27 Cal. 611; 12 Gray, 343; 10 Cush. 48; 12 Met. 551; 20 Conn. 559; 38 Pa. St. 149; 2 Parsons on Contracts, 685; 2 Greenl. Ev., sec. 28 et seq.

An account stated is not a more solemn instrument than a promissory note; it need not be any instrument at all; it is the meeting of the minds of two parties on the balance due. If the minds of the parties never met, that is, if one of them never assented to it or accepted it, it never could be anything that could be called an account stated. I refer to the cases cited by the other side, among others, 31 N.Y. 499; 11 Id. 170.

If plaintiff even agreed to the items of the account, and to the balance of the liquidated account, and the balance agreed upon was eight hundred and eighty-five dollars, when in truth and in fact the true balance of such liquidated account was four thousand four hundred dollars, then there would be no consideration for accepting a lesser sum, and plaintiff could recover the whole amount due, less credits proven. See cases above; 1 Nev. 116; 6 Gray, 513; 75 Pa. St. 245; 120 Mass. 67; 37 Am. Rep. 302; 81 N.Y. 171; 54 Id. 432.

It is objected here that we could not dispute this paper that had some account on the top of it and a receipt on the bottom. There is no peculiar sanctity about an account, and a receipt may always be disputed, whether it occurs in a promissory note, in an account, in a deed, or any other instrument: 2 Wharton on Ev., sec. 1864; Smith v. Holland, 61 N.Y 635.

Bennett Harkness & Kirkpatrick, for the respondent.

In law the plaintiff could avoid the bar of the accounting and settlement only by showing there was fraud in procuring the settlement or mistake in giving the receipt. If he could do this, the acknowledgment would amount to nothing except as to the amount of money he admitted receiving--it would be no settlement. If he failed in this, the settlement was a complete bar. It was not open to him in this form of action to avoid or effect the settlement only as to errors or mistakes in the items of the accounts settled; this would admit a settlement, and seek to open it by rebutting evidence for errors or mistakes not pointed out in the complaint.

An account stated (even before the balance is paid) is a bar to an action at law on the original items, and can only be opened, as to the items, by an action brought for that purpose, and specifically pointing out the errors arising from fraud or mistake. The primary issue is upon the fraud or mistake, and if the evidence is sufficient to prove the affirmative of the issue, the court opens the accounting to the extent the proof requires, and takes or orders a new statement rectifying the errors charged in the complaint, so far as proved, but in behalf of the plaintiff goes no further. In cases of gross frauds in the items, the court, if it is prayed, sometimes opens the whole accounting. These general principles are established by very numerous cases, of which a few only will be cited: 1 Daniell's Ch. Pr 665-669; Id., 371; Pomeroy's Eq. Jur., sec. 1421; Chappedelaine v. Dechenaux, 4 Cranch, 306; 2 Edw. Ch. 1, 293; 11 N.Y. 170; 31 Id. 498; 55 Wis. 93, 650; 7 Paige, 573; 41 Am. Dec. 60; 9 Cal. 353; 13 Id. 159.

The defendant's answer and evidence went further than a mere accounting; they set up and proved prima facie a settlement and satisfaction of a disputed matter, and this was a complete bar, unless the settlement was annulled for fraud. The facts proved included both an accounting and an accord and satisfaction. While payment of a less sum will not be a bar to a larger debt, though receipted in full, if the larger sum be fully liquidated, due, and acknowledged, yet if the amount be disputed, or if a new consideration or possible legal benefit or advantage arise out of the payment of the smaller sum, the accord is complete. Giving a check or a promissory note for a smaller agreed sum is held sufficient on an open account. They import a consideration, and change the burden of proof: Wharton on Contracts, sec. 1001; 1 Sutherland on Damages, 428.

The plaintiff's own evidence shows there was a dispute as to the amount due, and he received a check for the balance.

The effect of a settlement in such cases is sufficiently shown by these cases: Palmerton v. Huxford, 4 Denio, 166; 7 Cow. 231; 9 Cal. 353.

The fourth instruction requested by defendants should have been given. Though not as full as it should have been, it would have informed the jury that it was not the accuracy of the accounts or of the balance that was in controversy, but that both sides had put the case on the validity of the settlement. The converse of this is given in the first instruction for plaintiff, and the two lead to erroneous results.

We think the seventh instruction should have been given. The plaintiff's own testimony showed Gilmer paid intending it in full, and there was no pretense of concealment or fraud, and there was no notice to him he was in default: 84 N.Y. 420.

EMERSON, J. HUNTER, C. J., and TWISS, J., concurred.

OPINION

EMERSON, J.:

The complaint contains two causes of action: one for the balance due for the personal services of the plaintiff, and the other for the labor of the plaintiff's wife.

The answer admits that the plaintiff worked for the defendants for the length of time alleged, and the value of the services as charged in the first count. It denies any contract to pay the wife separately, and states that the amount alleged in the first count was for the services of both plaintiff and wife. It denies any indebtedness, and alleges payment. For a separate defense, it alleges an accounting in December, 1881, and before the commencement of this action, and a balance found due from the defendants to the plaintiff, which was then paid and accepted in full satisfaction.

On the trial the plaintiff gave no evidence under the first count of the complaint, but rested on the admissions in the answer.

Under the second count he gave evidence tending to show a contract to pay for the wife's labor separate from, and in addition to the amount to be paid for the personal services of the plaintiff as set out in the first count. The plaintiff then rested.

The defendants then gave evidence tending to disprove the alleged contract for separate or further compensation for the wife's services, and also put in evidence a statement of an account between the defendants and one Gedney, made up of a large number of items, consisting of provisions, clothing, and supplies generally.

The defendants reside and have their headquarters in Salt Lake City, while their ranch upon which the plaintiff was employed is in the state of Nevada.

The agreement between parties was that the defendants should furnish a house and the provisions necessary for the plaintiff and his family in addition to the stated monthly wages.

Gedney is a merchant doing business near the ranch in Nevada, and the account above referred to included many articles of clothing and the like which the defendants were not bound to furnish, but which were charged to them with the provisions and family supplies.

To this Gedney statement there was pinned a separate statement containing items of clothing and the like, taken from the former mentioned statement, and which were evidently not of the class or kind of articles which the defendants were bound to furnish under their contract, and also other items as a charge against the plaintiff, amounting to over two thousand eight hundred dollars; followed by a credit as follows: "By salary five years and nine months at sixty dollars per month," leaving a balance due the plaintiff of eight hundred and eighty-five dollars and twenty-seven cents. At the bottom of this sheet, and directly under the last entry showing the balance, is the following: "Received of Gilmer, Salisbury & Co. eight hundred and eighty-five and twenty-seven hundredths ($ 885.27) dollars, in full to December 21, 1881. Correct, J. T. Gilmer, Wm. Roach."

With this evidence the defendants rested their case. The plaintiff then offered rebutting testimony, with the view to...