4 La. Ann. 196 | La. | 1849
The judgment of the court (Rost, J. .absent,) was pronounced by
This is an action upon two accounts of John Goodin Sf Co., commission merchants, one with Ebenezer Howell, the deceased, and the other with the defendant as administrator after his death. The accounts appear to have been kept distinct on the books of John Goodin 8f Co. The items of the account with the deceased, begin in December, 1842, and .end in July, 1843. Those of the account with his succession commence in October, 1843, and abalance is struck dm
The defendant does not appeal- to dispute the sufficiency of the evidence with regard to the charges for supplies &c.; but contends that, with regard to the charges for drafts of the planter paid by the factor, the drafts themselves should have been produced; and that the secondary evidence, the testimony of the clerk of the factor that they had been paid, was properly rejected. On the other hand the plaintiff contends that accounts current were sent from time to time, and that, as no complaint was made with regard to them, the planter must be considered as having acquiesced in their correctness; and the production of the drafts was therefore unnecessary.
To malee an account a stated account it is not necessary that it should be signed by the parties. It is sufficient ff it has been examined and acceptpdjbyjboth, and that acceptance may be implied from circumstances. Hence the principal seems to be well settled that, an account rendered will be deemed an account stated from the presumed approbation or acquiescence of the parties, unless an objection is made thereto within a reasonable time. What is a reasonable time, must be determined with reference to the relations of the parties, or the usual course of business of the particular class of persons concerned. See Story’s Equity s. 526, and the cases there cited.
But giving | the [plaintiff 'the' benefit of this principle, the testimony offered at the trial was not of that definite character which would authorizo us to apply the principle in the case before us. The witness deposes as follows: “ John Goodin Co. were in the.habitpf sending an account current to each of then- customers at the close of the season’s business; andoftener than that, if they considered that their customers wanted too much in proportion to the extent of their crops or remembrance of their own obligations; an account current should always shpw what is owing to or by the individual tp whom it ip furnished— of course Mr. Hoioells’ account wasjregularly, (or rather irregularly, ho being one of the not too punctual,) transmitted to Ms customary address.” It will be perceived that the^witness speaks infer eniially-to the'point of the transmission of accounts to Howell. But, even if he be considered as intending to assert positively that accounts were transmitted to him from time tp time, yet upon this loose statement we cannot qct with precision upon the items of thejiccount^and say how many of its items must be considered ,as having be,en[communicated to, and acquiesced in by, the planter. If it had been shown that, on a certain day, an account brought down to that day, and striking a balance, had been transmitted to the planter, and that the business and correspondence of the parties had [subsequently proceeded [as before without objection, there would then have been a basis laid upon which the judge below might have been required to sayt whether, under all [the circumstances, the acquiescence of the party could reasonably be presumed, and down to what time, unci us to what portion of the account sued upon. Judgment affirmed.
