Sunshine Dairy v. Jolly Joan

• Decision Date: 10 April 1963
• Citation: 234 Or. 84,380 P.2d 637
• Parties: SUNSHINE DAIRY, a corporation, Appellant, v. JOLLY JOAN, a corporation, Respondent.
• Court: Oregon Supreme Court

Page 637

380 P.2d 637

234 Or. 84

SUNSHINE DAIRY, a corporation, Appellant, v. JOLLY JOAN, a corporation, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 4, 1963.

Decided April 10, 1963.

Kenneth M. Judd, Portland, argued the cause for appellant. With him on the briefs were Koerner, Young, McColloch & Dezendorf, Portland.

Donald W. McEwen, Portland, argued the cause for respondent. On the brief were Cake, Jaureguy, Hardy, Buttler & McEwen and John R. Faust, Jr., Portland.

Before McALLISTER, C. J., and PERRY, O'CONNELL, DENECKE and LUSK, JJ.

DENECKE, Justice.

The plaintiff dairy brought an action on an account stated against one of its former customers, the defendant restaurant. The jury returned a verdict for the plaintiff. The trial court set aside the verdict and entered judgment for the defendant on the ground that there was no evidence to support the plaintiff's cause of action. The only question on appeal is whether there was any evidence to support the jury's verdict.

'An account stated is an agreement between persons who have had previous transactions of a monetary character fixing the amount due in respect to such transactions and promising payment. * * *' Steinmetz v. Grennon, 106 Or. 625, 634, 212 P. 532, 535.

The crux of an account stated is an agreement between the parties that a certain amount is owing and will be paid. The question here is,--was there such an agreement?

In 1951 the defendant restaurant did not pay the plaintiff dairy a bill rendered by the dairy to the restaurant in the approximate amount of $3,300. There is testimony that there was a dispute whether any or all of this bill was owed by the restaurant. In 1953 $1,000 was paid on this disputed bill, leaving a balance of about $2,300. From 1953 until the parties ceased doing business with one another in 1960, monthly statements were rendered by the dairy to the restaurant. Each month the statement contained an itemization of the charges for each day of the past month, and the unpaid balance carried forward from the last statement. Except in an inconsequential amount, the unpaid balance was always equal to or greater than this $2,300 resulting from the 1951 dispute.

The restaurant would make payment of the dairy's monthly statement the middle of the following month in an amount approximately equal to the charges made for deliveries in the previous month. The restaurant did not direct any application of such payments and the dairy always credited such payments on the total of the account, including daily charges and past due balance, and the balance would be reduced again to the $2,300 figure.

Mr. Karamanos, one of the dairy owners, testified that he was a social and business friend of Mr. Michos, the restaurant owner. He stated that from 1953 to 1959 he 'used to kid [Mr. Michos]' about the balance owing every time they met and Mr. Michos jokingly said he did not have the money to pay. Mr. Michos died in 1959.

In December, 1961, the dairy filed an action against the restaurant, alleging that on February 1, 1959, an account was stated between the parties showing a balance of $3,658.59 and the defendant agreed to pay the same. The plaintiff further alleged that the defendant paid approximately $1,300 on the account, leaving a balance of $2,300.

Why the February 1, 1959, statement was used no one explained. The statement for any month could have been used and the net amount, after payment of the charges from the past month, would have been the same.

The principal issue is whether the defendant impliedly or expressly acquiesced and promised to pay the amount shown by the statement of February 1, 1959.

'[A] statement of the same [account] rendered by one to the other and received without objection by the latter urged within a reasonable time becomes a stated account binding upon the parties * * *.' Crim v. Thompson, 98 Or. 599, 613, 193 P. 448, 452.

This is the principle relied upon by the plaintiff. There is evidence that no express objection was made to the February 1, 1959, statement until not long before the lawsuit was filed.

We hold, however, that there was no evidence of acquiescence or implied assent to the account and no implied promise to pay. The above quotation from Crim v. Thompson, supra, states an accepted commercial practice. If one sends a statement containing certain charges or a balancing of mutual accounts and the receiver of the statement makes no objection or reply within a reasonable time, the commercial world reasons that the amount is accepted and payment will be forthcoming. That was not, however, what happened here. On February 1, 1959, a statement or bill for $3,600 was sent to the restaurant. The customer, however, did not remain silent or inactive. The customer promptly paid the charges for the last month and left unpaid $2,300, a practice the customer had followed for six years. After February 1, 1959, the customer continued the same practice as long as it continued to do business with the...