Shores-Mueller Co. v. Bell
| Decision Date | 02 November 1917 |
| Docket Number | 8330. |
| Citation | 94 S.E. 83,21 Ga.App. 194 |
| Parties | SHORES-MUELLER CO. v. BELL ET AL. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court did not err in the ruling upon the demurrer to the answer, nor in overruling the motion for a new trial.
Additional Syllabus by Editorial Staff.
An "account stated" is an agreement by which the parties who have had previous transactions fix the amount due in respect thereto and promise payment.
In the absence of a demurrer for insufficient allegations with reference to a promise to pay the petition is good, treated as an action on an account stated, as it would be open to amendment to meet the objection.
Where the requirements of an action on a stated account are met defendant, in order to dispute the correctness of the amount alleged to be due, may surcharge and falsify as permitted by Civ. Code 1910, § 4591, that is, he may allege the omissions and deny the correctness of the items rendered.
Where a purchaser, notwithstanding his full actual knowledge of defects in the articles sold to him, deliberately promises in writing to pay therefor, he cannot thereafter set up a plea of failure of consideration based upon such defects.
The admission of irrelevant and immaterial evidence, which could not have harmed the plaintiff's case, afforded no ground for a reversal.
A contract is considered to be entered into in the place where the acceptance was made.
Where no statute of another state is pleaded, it will be presumed that the common law is in force in such state.
Under the common law a married woman's contract of guaranty was void and did not bind her.
In a suit, as upon an account stated, parts of the charge which apart from the context, might have confused the method of payment with defendant's liability were not misleading where the charge as a whole showed that his liability was not thus improperly limited.
Error from Superior Court, Gordon County; A. W. Fite, Judge.
Suit on account stated by Shores-Mueller Company against A. J. Bell, as principal, and P. C. Bell and others as guarantors. Demurrer to answer of defendant A. J. Bell overruled, verdict for defendants, motion for new trial overruled, and plaintiff brings error. Affirmed.
On or about June 14, 1910, the plaintiff, Shores-Mueller Company, entered into an agreement with A. J. Bell as principal, and P. C. Bell, J. H. Littlefield, and W. A. Tate as guarantors, whereby it was agreed that the plaintiff was to furnish to the principal such medicines, extracts, spices, and other goods as he might from time to time order; the principal agreeing to pay for such articles, and having the right, under the agreement, "to pay his said account by remitting in cash each week to the company an amount equal to one-half of the receipts from his business until the account is balanced." There were other provisions of the contract, including one requiring the purchaser to furnish to the company weekly reports of his business. This suit was brought on May 4, 1915, as on an "account stated," and in the petition it was alleged:
"That on the 5th day of November, 1912, the said A. J. Bell acknowledged his indebtedness in the said amount of $617.86 in the following manner, to wit: 'Auditing Department, Shores-Mueller Company, Tripoli, Iowa--Gentlemen: I hereby acknowledge receipt of your monthly statement of my account, dated 11--5--12, for month of October, 1912, showing a balance due to Shores-Mueller Company of $617.86 * * * which is true and correct and agrees with my books.' "
It was also shown by the petition that after November 5, 1912, the defendant A. J. Bell returned certain articles included in his purchases, and was entitled to a credit of $264.93 for them, leaving a balance due plaintiff of $415.40. In his answer he admitted the execution of the contract, and denied the allegations contained in that paragraph of the petition which set up the acknowledgment of indebtedness, but did not deny the correctness of the account sued on, as to the balance due for articles furnished, except that he denied all indebtedness to the plaintiff, alleging a failure of consideration under the contract, in that the goods furnished were themselves worthless. The guarantors disputed their liability, and denied generally the allegations of the several paragraphs of the petition; one of the guarantors, P. C. Bell, also pleading specially that her contract of guaranty was void because of the fact that she was a married woman and therefore, at the time she signed the agreement, was unable legally to bind herself thereby. The plaintiff demurred to the answer of A. J. Bell, on the ground:
"That the suit filed in this case is a suit based on an account stated, which operates as a confession, and a fixed liability, and there are no facts alleged in said plea which would, as a matter of law, entitle defendant to such relief * * * as is sought to be made in and by said plea."
The demurrer was overruled, and on the trial a verdict was returned for the defendants. The plaintiff excepts to the overruling of its demurrer, and of its motion for a new trial.
J. G. B. Erwin, Jr., of Calhoun, for plaintiff in error.
Lang & Lang and Geo. A. Coffee, all of Calhoun, for defendants...
To continue reading
Request your trial