191 Mass. 556 | Mass. | 1906
We are of opinion in this case that an action at law cannot be maintained on an account stated. An account stated must be founded on previous transactions of a monetary character creating the relation of debtor and creditor. Lubbock v. Tribe, 3 M. & W. 607. Mellon v. Campbell, 11 Penn. St. 415. It cannot be made the instrument to create a liability where none before existed, but only determines the amount of a debt where liability exists. Austin v. Wilson, 33 N. Y. St. Rep. 503.
On the facts found by the auditor, there was no legal liability existing on the part of the defendant’s testator towards the plaintiff, on May 31, 1895, after the death of the mother; and the alleged promise of the defendant’s testator to share equally with the plaintiff the proceeds of the mother’s estate was without consideration and void.
If the property left by the will of the mother to the defendant’s testator absolutely can be shown by oral evidence to have been intended one half for the plaintiff, his remedy is in equity and not at law. Olliffe v. Wells, 130 Mass. 221. Dowd v. Tucker, 41 Conn. 197. Hooker v. Axford, 33 Mich. 453. Gilpatrick v. Glidden, 81 Maine, 137.
_Exceptions overruled.
