Walker v. Trotter Bros.

• Court: Supreme Court of Alabama
• Citation: 68 So. 345,192 Ala. 19
• Docket Number: 835
• Parties: WALKER v. TROTTER BROS.
• Decision Date: 15 April 1915

68 So. 345

192 Ala. 19

WALKER v. TROTTER BROS.

No. 835

Supreme Court of Alabama

April 15, 1915

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by Trotter Brothers against R.H. Walker. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Transferred from Court of Appeals, under section 6, p. 449, Act 1911.

Street & Isbell, of Guntersville, for appellant.

William C. Rayburn, of Guntersville, for appellees.

GARDNER J.

Action by appellees against appellant for an alleged balance due on a stated account.

There was but one count in the complaint, and that was on an "account stated." Defendant pleaded, in addition to the general issue, payment, and the statute of limitations of six and three years. The bill of exceptions disclosed all the evidence in the case, and the refusal of the general affirmative charge constitutes one of the assignments of error.

"To make an 'account stated,' there must be a mutual agreement between the parties," as to the allowance of their respective claims, and to establish such an account there must be proof of "assent to the account as rendered. To maintain the action as averred in the complaint, the plaintiff must prove an account stated; that and nothing else, will support his allegations. 'An account stated is an account balanced and rendered, with an assent to the balance, expressed or implied, so that the demand is essentially the same as if a promissory note had been given for the balance.' Loventhal v. Morris, 103 Ala. 332 ." Moore v. Holdoway, 138 Ala. 448, 35 So. 453.

"In order to create a stated account, there must not only be a meeting of the minds as to correctness of the statement, but there must be a promise by the debtor expressed or implied, for the payment of same. *** The mere admission that the items of an account are correctly stated is not sufficient, unless it appears that the debtor expressly or impliedly agreed to pay it. *** It is true that if one renders another an account, which he promises to pay or which he retains without objection, it becomes a stated account, because of an express promise to pay in the first instance, or of an implied promise in the second, arising out of the retention of same without objection; but the mere admission of the correctness of the items of an account, with a denial of liability, would not make it an account stated. In other words, in order to render one liable as upon an account stated, he must not only admit its correctness, but must expressly or impliedly admit his liability." Moore v. Maxwell, 155 Ala. 299, 46 So. 755.

As before noted, there was but one count in the complaint, that upon an account stated. There is nothing in the record to indicate that the distinction between an open account and an account stated was taken note of by the plaintiffs in the trial...