Ware v. Manning

• Citation: 86 Ala. 238,5 So. 682
• Parties: WARE v. MANNING.
• Decision Date: 02 March 1889
• Court: Supreme Court of Alabama

5 So. 682

86 Ala. 238

WARE v. MANNING.

Supreme Court of Alabama

March 2, 1889

Appeal from circuit court, Clay county; JOHN B. TALLY, Judge.

This action was brought by the appellee, H. A. Manning, against the appellant, W. J. Ware, and was founded on a stated account, alleged to have been stated between the plaintiff and the defendants. The principal question raised by the record was as to what constituted a stated account. There were, as shown by the bill of exceptions, cross-demands, and the defendant questioned one or two items of the plaintiff's account. The evidence is sufficiently well set out in the opinion of the court. The charges asked and given and refused, which were based on the evidence, were as follows: The court gave the following oral charge ex mero motu: "If the jury find from the evidence that plaintiff and defendant met in 1877, and looked over each other's accounts, and defendant acknowledged plaintiff's account to be correct in whole, the account became a stated account, and this would be true even if the defendant did not have his notes then, and they were not considered in the calculation." The defendant accepted to the giving of this charge. The plaintiff then requested the court in writing to give the following charges:

" First. The court charges the jury that to make an account a stated account it is not necessary that a balance be struck by the parties, by deducting what one party owes from what the other owes; nor is it necessary that the exact amount of the account be ascertained by making additions and counting of interest due on the account, and thus ascertaining the exact amount of the account. If a man is shown his account, and the items charged against him, and he makes no objection to the account, then this makes the account a stated account.

" Second. The court charges the jury that where there are mutual accounts or dealings between the parties,-that is where the accounts consist of debits and credits on each side,-if any part of the account be not barred by the statute of limitations, then no part of the account is barred by the statute of limitations.

" Third. The court charges the jury that if, on December 25, 1879, plaintiff then had no claim against the defendant which was not barred by the statute of limitations that then the three eighty-dollar notes offered in evidence by defendants are barred by the statute of limitations, and should not be considered by the jury in arriving at a verdict in this case.

" Fourth. If the jury believe from the evidence that on December 25, 1877, Bartlett and Ware tried to have a settlement, and Bartlett showed Ware the accounts which plaintiff then had against him, (defendant,) and the items constituting such accounts, and that defendant, Ware, then made no objections to said accounts, but agreed to bring in the notes and other claims he held against plaintiff, but failed to do so, and on account of such failure of Ware said settlement was never finished, then the account as presented or shown by Bartlett to Ware became a stated account, and is not barred by the statute of limitations.

" Fifth. If the jury believe from the evidence that defendant held against plaintiff the three eighty-dollar notes which have been offered in evidence, and traded with the defendant with the understanding, express or implied that the account of the defendant was to be applied to the liquidation of said eighty-dollar notes, and that the parties have ever since 1873 had mutual dealings on the account with each other, then no part of plaintiff's account is barred, nor are said eighty-dollar notes barred, by the statute of limitations.

" Sixth. The court charges the jury that if any part of plaintiff's account current, if he has shown such account, is not barred by the statute of limitations; that is, if any item of it is not barred by the statute of limitations, then no part of the account is barred."

The defendant accepted to the giving of each of these charges by the court, and also duly reserved an exception to the court refusing to give the following charge asked by him in writing:

"(3) In stating an account, two things are necessary: First, that there be a mutual examination of the claims of each other's accounts by the parties; and, second, that there be a mutual agreement between them as to the correctness of the allowance and disallowance of the respective accounts, and of the balance as it is struck upon the final adjustment of the whole account and demands on both sides. The minds of the parties must meet upon the allowance of each item of the accounts allowed, and upon the disallowance of each item of the account rejected. They must mutually concur upon the final adjustment, and nothing short of this in substance will fix and adjust their respective demands, as on an account stated."

The giving of the charges copied as asked by plaintiff, and the refusal to give the charges asked by the defendant, are now assigned as error.

W. H. Smith and C. A. Steed, for appellant.

Parsons, Pearce & Kelly and W. M. Lackey, for respondent.

CLOPTON J.

An account stated may be defined, in general terms, to be where an account is rendered, and a debt in a specified sum is acknowledged as...