128 N.Y.S. 1024 | N.Y. App. Div. | 1911
The complaint alleges that an account was stated between the plaintiff’s assignor and defendant, and that upon such statement the sum of $340.20 was found to be due from defendant to said assignor, which, although demanded, was unpaid. The answer denies each and every allegation of the complaint.
The principles applicable to an account stated are well settled. It must be based bn previous transactions out of which the indebtedness arose ; the relation of debtor and creditor must exist between the parties as to the items forming the account, and all of them. Such an account cannot be made the instrument to create a liability where none existed, but only determines the amount of an existing valid debt.
It appears that in 1905 the defendant loaned to her husband, John Ambs, $1,200, with which he engaged in the business of buying and selling meat in a building owned in part by the defendant, for which he paid rent. He conducted the business in his own name, which was upon his signs and stationery ; he purchased in his own name, paid with his own checks, kept his own bank account and made out and collected his bills receivable in his name. The defendant had no interest in or connection of any kind with such business prior to July 1, 1910, if ever. From January 16, 1906, he did business with plaintiff’s assignor, who had' no business dealings, of any kind with the defendant prior to said July first. On that day defendant’s husband was indebted to plaintiff’s assignor for meats purchased of him, in an amount approximating $400.
The plaintiff called but one witness, Wright, who testified that on June 27, 1910, he was employed by plaintiff’s assignor; that he went to the place of business of defendant’s husband to procure a payment on the account and was promised by Mr. Ambs a check for at least $200, which he called for bn July first
The essential elements :of an account stated are lacking, and the appellant’s exception Ito the refusal off the trial court to dismiss the complaint for that reason presents reversible error. In addition, the witness jVright testifies that his conversation With the defendant on July first took place in her ' husband’s store and in his' presencie. The defendant testifies that she never had any-conversation, with Wright anywhere, and specifically deifies the conversations to which he testified; that she was never iirher husband’s store - during business hours. She
The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.
Thomas, Carr and Woodward, JJ., concurred; Jenks, P. J., concurred in result.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.