37 N.C. App. 10 | N.C. Ct. App. | 1978
Defendant contends that the trial court erred in denying its motions for summary judgment and directed verdict for the reason that the signed audit statement and the entry of the $3,000.00 in plaintiff’s books as an account payable established, as a matter of law, the existence of an account stated between plaintiff and defendant. We cannot agree.
On the subject of accounts stated, our courts have declared:
“To constitute a stated account there must be a balance struck and agreed upon as correct after examination and adjustment of the account. However, express examination or assent need not be shown — it may be implied from the circumstances. (citation omitted.)
“An account becomes stated and binding on both parties if after examination the parties sought to be charged un-qualifiedly approves of it and expresses his intention to pay it. (citation omitted.) The same result obtains where one of*13 the parties calculates the balance due and submits his statement of account to the other who expressly admits its correctness or acknowledges its receipt and promises to pay the balance shown to be due. . . .” Little v. Shores, 220 N.C. 429, 17 S.E. 2d 503 (1941).
“ ‘An account stated may be defined, broadly, as an agreement between the parties to an account based upon prior transactions between them, with respect to the correctness of the separate items composing the account, and the balance, if any, in favor of one or the other. . . .’ An account stated operates as a bar to any subsequent accounting except upon a specific allegation of facts constituting fraud or mistake.” Teer Co. v. Dickerson, Inc., 257 N.C. 522, 126 S.E. 2d 500 (1962).
Guided by these principles, we are of the opinion that the auditors’ statement on its face was sufficient to create an account stated. However, at the time of the hearing on the summary judgment, the court also had before it plaintiff’s response to defendant’s request for admissions wherein plaintiff denied that her signature on the audit slip was intended to indicate her admission that she owed defendant the money. The purport of plaintiff’s response was that plaintiff intended only to acknowledge her receipt of the $3,000.00 from defendant. This clearly raised the defense of mistake — a question of fact justifying the denial of defendant’s motion for summary judgment.
The propriety of the court’s denial at trial of defendant’s motion for a directed verdict is interwoven with defendant’s further contention that plaintiff’s testimony at trial relative to her conversation with defendant’s vice-president should have been excluded. Defendant argues that this testimony tended to contradict the agreement established by the audit slip — the account stated — and thus, its admission violated the parol evidence rule. Without this testimony, it is defendant’s contention that a directed verdict was proper.
The general rule is that in the absence of fraud or mistake or allegations thereof, parol testimony of prior or contemporaneous negotiations or conversations inconsistent with the writing are incompetent. See Neal v. Marrone, 239 N.C. 73, 79 S.E. 2d 239 (1953).
In the instant case, plaintiff’s testimony indicated that she signed the audit slip under the mistaken belief that it merely acknowledged her receipt of the $3,000.00 from defendant. She did not intend thereby to admit that she owed the money or to agree to pay such amount to defendant. This was sufficient evidence of mistake of fact to prevent the formation of the agreement requisite to the creation of an account stated. Therefore, the challenged testimony was competent to attack the validity of the account stated, see Morganton v. Millner, 181 N.C. 364, 107 S.E. 209 (1921), and was sufficient to raise a question of mistake requiring jury determination. The denial of defendant’s motion for directed verdict was proper.
The trial court’s entry of judgment for plaintiff on the verdict returned is
Affirmed.
