Stan's Lumber, Inc. v. Fleming

Decision Date30 August 1995
Docket NumberNo. 94-1258,94-1258
Citation196 Wis.2d 554,538 N.W.2d 849
Parties, 28 UCC Rep.Serv.2d 801 STAN'S LUMBER, INC., a Wisconsin corporation, Plaintiff-Respondent, v. Gary P. FLEMING, d/b/a Gary P. Fleming Associates, Defendant-Appellant.
CourtWisconsin Court of Appeals



Gary P. Fleming, d/b/a Gary P. Fleming Associates, appeals from a money judgment in favor of Stan's Lumber, Inc. The judgment followed a trial at which a jury returned a favorable verdict to Stan's based on the law of account stated, unjust enrichment and implied or express contract.

On appeal, Fleming first argues that he was entitled to a directed verdict or "judgment after the verdict" on the account stated claim. 1 We hold that evidence supports the jury's award under the law of account stated. Therefore, we do not address the additional issues which Fleming raises concerning the awards for unjust enrichment and implied or express contract.

Fleming also argues that any agreement between the parties is unenforceable because it violated the statute of frauds. We hold that the agreement was exempt from the statute of frauds because Stan's fully performed under the agreement.

Fleming further argues that the trial court improperly awarded Stan's its actual reasonable attorney's fees. We hold that the court properly awarded the fees because Fleming promised to pay for such in his credit application which was accepted and relied upon by Stan's. We further hold that the fees were reasonable and necessary.

Last, Fleming argues that the trial court improperly awarded Stan's double costs pursuant to the offer of settlement statute, § 807.01, STATS. Because Stan's offer was ambiguous and did not clarify whether it included or exempted a portion of Stan's claim which had previously been reduced to judgment, we reverse the award of double costs. 2

We affirm all other provisions of the judgment.


Stan's sells lumber and building supplies. During February 1990, Fleming inquired whether Stan's would provide building supplies for a home Fleming was intending to build on property owned by his wife in Illinois. Stan's provided Fleming with a credit application which Fleming completed. The credit application required the applicant to pay "attorney's fees, costs, or any other expense of collection." Stan's approved the application, and in June 1990, Stan's provided Fleming with a cost estimate of the materials.

In November 1990, Fleming began purchasing the materials from Stan's. These purchases continued into July 1991. Stan's made a total of forty-four deliveries to Fleming's building site. Stan's regularly billed Fleming for the materials. Fleming made the following payments against the account: $15,897.06 in December 1990; $7000 in April 1991; $17,000 in May 1991; $5000 in June 1991; and $5000 in July 1991, for a total of $49,897.06.

Fleming made no further payments after July 1991. At that time, his account balance was $33,200.99. Stan's continued to bill Fleming for this balance plus the accrued financing charges until April 1992. At that time, the balance was $35,880.84. When Stan's inquired of Fleming about payment, Fleming stated that one of his employees had embezzled money from him, and he asked Stan's to be patient with him regarding the account. However, Fleming made no further payments.

On May 1, 1992, Stan's commenced this action to recover the $35,880.84 balance plus its attorney's fees, costs and other expenses of collection. Stan's based these claims on Fleming's credit application which Stan's alleged represented an express contract. Alternatively, Stan's alleged a cause of action based on the law of account stated. Stan's later amended its complaint to add a cause of action based on unjust enrichment.

Fleming's initial answer admitted a balance due of $9722.26. Later, by amended answer, Fleming reduced this admission to $5785.06. Eventually, the trial court determined that the proper amount which Fleming admitted was $8790.73. The court then Thereafter, on March 28, 1994, Stan's filed an offer of settlement in the amount of $30,000. Fleming did not accept the offer.

entered judgment in this admitted amount pursuant to § 806.03, STATS. 3

A jury trial was held, and the jury's special verdict found for Stan's based on implied or express contract, account stated and unjust enrichment. As to all three causes of action, the jury determined that the value of the materials which Stan's had furnished to Fleming was $80,460.35. Postverdict, the trial court denied Fleming's challenges to the jury awards. In addition, the court granted Stan's motions for its reasonable attorney's fees, costs and disbursements pursuant to the credit application. The court also awarded Stan's double the amount of its taxable costs pursuant to the offer of settlement statute, § 807.01(3), STATS. Fleming appeals.


In order to put some of the appellate issues in their proper perspective, we make two preliminary observations about the procedure, verdict and judgment in this case.

First, while the jury fixed Stan's damages at $80,460.35 on all of its causes of action, we observe that this amount represented the total value of all the materials which Stan's delivered to Fleming. Because these awards did not factor in the amounts previously paid by Fleming, they far exceeded the account balance for which Stan's sued, $35,880.84. Therefore, the judgment in this case properly offset Fleming's prior payments against the jury's award. Thus, the net amount awarded to Stan's, exclusive of interest, attorney's fees, costs and disbursements, was $30,563.29.

Second, the jury's awards also did not factor in the $8790.73 judgment on admitted claim based on Fleming's prior admission. Unlike Fleming's prior payments, however, the final judgment did not offset this amount. Instead, the trial court's findings of fact and conclusions of law expressly state that the judgment shall include this amount. Thus, under the present state of the record, Stan's has two enforceable judgments as to the $8790.73 portion of its total claim. 4


1. Account Stated

Stan's obtained a favorable verdict based upon the law of account stated. Fleming argues that the trial court should have directed a verdict in his favor at the close of the evidence or granted judgment in his favor after the verdict as to this claim. Fleming argues that the evidence is insufficient to support the verdict and, regardless, the evidence does not satisfy the legal standard for an account stated. As to the sufficiency of the evidence argument, our obligation is to search for any credible evidence that under any reasonable view supports the verdict. See, e.g., Nieuwendorp v. American Family Ins. Co., 191 Wis.2d 463, 473, 529 N.W.2d 594, 598 (1995). However, whether factual findings fulfill a particular legal standard presents a question of law which we review de novo. Waage v. Borer, 188 Wis.2d 324, 328, 525 N.W.2d 96, 98 (Ct.App.1994).

An account stated is an agreement between a debtor and creditor that the items of a transaction between them are correctly stated in a statement rendered, that the balance shown is owed by one party to the other and that the party has promised to pay that balance to the other. Onalaska Elec. Heating, Inc. v. Schaller, 94 Wis.2d 493, 499, 288 N.W.2d 829, 832 (1980); see also R.H. Stearns Co. v. United States, 291 U.S. 54, 65, 54 S.Ct. 325, 329, 78 L.Ed. 647 (1934). The promise to pay the balance may be express or implied from the conduct of the parties. Lepp v. Tamer, 1 Wis.2d 193, 199, 83 N.W.2d 664, 668 (1957).

In an action on an account stated, the retention of a statement of an account by a party without making an objection within a reasonable time is evidence of acquiescence in or assent to the correctness of the account. Onalaska, 94 Wis.2d at 502-03, 288 N.W.2d at 834; RESTATEMENT (SECOND) OF CONTRACTS § 282 (1979). An implied agreement to pay may be presumed from such retention. See Wussow v. Badger State Bank, 204 Wis. 467, 476, 236 N.W. 687, 688 (1931). Furthermore, an account stated may arise where a debtor makes partial payment on an account or accompanies partial payment with an agreement to pay the balance. Lepp, 1 Wis.2d at 199, 83 N.W.2d at 668.

We conclude that the evidence in this case demonstrates a classic account stated scenario. Stan's and Fleming initially struck an admittedly vague open account agreement by which Stan's agreed to deliver to Fleming an unspecified amount of building materials on Fleming's demand. However, as the parties' transaction progressed, the vagueness of the initial agreement was clarified by Fleming's orders for specific materials and Stan's delivery of the same, documented by its corresponding invoices and billings. In response to these billings, Fleming made periodic payments and otherwise offered assurances to Stan's that the balance would be paid once Fleming's financial difficulties with his employee had been resolved.

We appreciate that Fleming testified that he objected to the second billing statement. However, this testimony was directly refuted by Stanley Torstenson, the owner and president of Stan's. Torstenson testified that Fleming never expressed an objection to Stan's billings nor to the materials or services which Stan's provided. This conflict presented a credibility issue for the jury to resolve. Again, we must look for evidence that supports the jury's verdict. See Nieuwendorp, 191 Wis.2d at 473, 529 N.W.2d at 598.

The jury's adoption of Torstenson's testimony...

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