Voigt v. Brooks

• Decision Date: 12 April 1897
• Citation: 48 P. 549,19 Mont. 374
• Parties: VOIGT v. BROOKS et al.
• Court: Montana Supreme Court

48 P. 549

19 Mont. 374

VOIGT v. BROOKS et al.

Supreme Court of Montana

April 12, 1897

Appeal from district court, Fergus county; Dudley Du Bose, Judge.

Action by Gustave Voigt against H. P. Brooks, John Brooks, and Anthony Brooks, partners as H. P. Brooks & Bros., on an account stated. Judgment for plaintiff, and defendants appeal. Affirmed.

Action on an account stated. The complaint alleged that the defendants were co-partners; that about January 1, 1894 defendants and plaintiff had an account stated, and upon such statement a balance of $861.48 was found due to plaintiff from defendants for all transactions between them up to and including December 31, 1893; and that about October 20, 1894 there was another account stated between plaintiff and defendants, which said second account included the above-described account and all transactions had between the parties up to and including September 2, 1894, and which last-mentioned statement showed a balance of $1,202.40 due to plaintiff by defendants; that no part of said sum so ascertained to be due had been paid, except $360, paid in November, 1894, and $30, paid in April, 1895. Judgment was demanded for $812.40 and interest. The defendants demurred generally, and upon the further ground that the complaint was uncertain, in that it did not allege the nature or character of respondent's claim against the appellants for the period of time within which it arose. The district court overruled the demurrer. Defendants having elected to stand upon the demurrer, the court rendered judgment in favor of plaintiff and against defendants. The appeal is from the judgment.

W. M Blackford, for appellants.

Frank E. Smith, for respondent.

HUNT J. (after stating the facts).

In support of their general demurrer, the appellants contend that, in an action upon an account stated, the complaint is fatally defective unless it aver that the defendant expressly promised to pay the balance agreed upon by the parties. An account stated means a balance ascertained between the parties to a settlement, and, where plaintiff is able to show that the mutual dealings which have occurred between two parties have been adjusted, settled, and a balance struck the law implies a promise to pay that balance. Watkins v Ford, 69 Mich. 357, 37 N.W. 300. It is strictly evidence of the admission of a debt; it is the acknowledgment of the existing condition of liability between the parties. "From an account stated the law implies a promise to pay whatever balance is thus acknowledged to be due." Chace v. Trafford, 116 Mass. 529. It is not necessary that there should be an express promise to pay, as appellants contend. On the contrary, there is an implied promise in law on the part of him against whom the balance is found to pay, and action is maintainable thereon. Jaques v. Hulit, 16 N. J. Law, 38; Vanbebber v. Plunkett (Or.) 38 P. 707. In Heinrich v. Englund, 34 Minn. 395, 26 N.W. 122, it was said of a complaint...