Armitage v. Saunders

94 Mich. 482 | Mich. | 1893

Montgomery, J.

The plaintiff brought an action against the defendants to recover a balance due on account for services rendered as a blacksmith.

The defendants are keepers of a livery stable, the present firm having succeeded to the firm of Oloss & Co., which firm was composed of one of the present members and one Oloss, who retired in February, 1889, at which date the other two defendants were admitted to the firm. At this date the firm of Oloss & Go. was owing plaintiff a balance of $72.95. This balance was carried into the account of the new firm, which was treated as the successor of the old, and bills were rendered monthly, r;pon which payments were made from time to time, the balance due plaintiff varying at different times from $27.75, on May 1, to $81.05, December 24, when the dealings between the parties closed. Considerably more than sufficient to satisfy the balance of February 23 had been paid at different dates, and some payments had been made when the payments by far exceeded the amount due on the new deal.

The only defense relied upon is the statute of frauds, which exempts one from liability for the debt of another unless the obligation be evidenced by writing.¹ The facts of the case render the statute inapplicable. It was certainly competent for the defendants to pay the bill of plaintiff against Closs & Co., and this they have done, if the plaintiff is privileged to make application of the payments in the order received on an admitted bill. This he has done, and, we think; rightly.

We think, also, that there was an account stated. Under these circumstances, it is not necessary that the antecedent debt or demand between the parties be proved. Stevens v. Tuller, 4 Mich. 387; Albrecht v. Gies, 33 Id. 389.

The judgment will be affirmed, with costs.

The other Justices concurred.

1 See Chappell v. Barkley, 90 Mich. 35.