Shores-uemller Co v. Bell

• Citation: 94 S.E. 83,21 Ga.App. 194
• Decision Date: 02 November 1917
• Docket Number: (No. 8330.)
• Parties: SHORES-UEMLLER CO. v. BELL et al.
• Court: United States Court of Appeals (Georgia)

94 S.E. 83

(21 Ga.App. 194)

SHORES-UEMLLER CO.

v.BELL et al.

(No. 8330.)

Court of Appeals of Georgia,

Division No. 1.

Nov. 2, 1917.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Account Stated.]

[Ed. Note.—For other definitions, see Words and Phrases, "First and Second Series, Surcharge; Falsify.]

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. Littlefiel'd, 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 $2G4.93 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. O. 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 in error.

JENKINS, J. (after stating the facts as above). [1-5] 1. We think the demurrer to the defendant's answer was properly overruled. An "account stated" is an agreement by which parties who have had previous transactions fix the amount due in respect thereto, and promise payment. Moore v. Hendrix, 144 Ga. 646, 648, 87 S. E. 915; Borders v. Gay, 6 Ga. App. 734, 65 S. E. 788. While the quoted letter to the plaintiff from the defendant principal, A. J. Bell, certainly undertakes to fix the amount due in respect to the items of their previous transactions, it lacks one of the necessary requirements in order to constitute an "account stated, " in that it fails to embrace a promise to pay. It was held in the case of Ward v. Stewart & Ward, 103 Ga. 261, 29 S. E. 872 (3),...