This сase was tried in the circuit court on appeal from a justice court. It is a suit on an itemized account for merchandise sold by plaintiff to defendant. The parties waived a jury and tried the case to the court, resulting in a finding and judgment for plaintiff for the amount sued for with interest, aggrеgating $150.70. There is no dispute as to the amount and defendant admits that it is due and unpaid.
The errors assigned are: (1) That plaintiff sued on an itemized account while the evidence shows an account stated; (2) that plaintiff, having a larger demand, sued for and recovered a part of it in a prior action and, therefore, cannot maintain this suit for the balance of such demand under the rule that a single cause of action affords only a single remedy.
It appears that plaintiff is a wholesale merchant and sold defendant three distinct bills of goods at sepаrate times. The first of these was paid without question. The second bill of goods was sold to defendant on December 7, 1911, and amounts to $120.60. The third bill of gоods, the one now in controversy, was sold to defendant on March 5,1912. Each of these sales was made on orders taken by plaintiff’s traveling sаlesmen specifying the items, amounts and terms of sale, which orders were accepted by plaintiff and the goods shipped shortly after thе taking of each order respec-. lively. The second bill was due in sixty days after its date and the third in ninety days after its date. After both bills became duе, the plaintiff brought suit on the first one only and recovered thereon. The claim here is that at the time the plaintiff brought such former suit, it had a single dеmand for the aggregate amount
It is elementary law that a person having a single demand, though made up of several distinct items, cannot split the same so as to make two causes of action and a judgment concludes the parties in respect to the whole cause of aсtion sued on whether the suit included the whole or only a part of the demand sued for. This rule applies, although the items are in their nature distinct аnd arise or become due at different times, if they grow out of a single tort or contract. [Steiglider v. Mo. Pacific Ry. Co.,
The defendant invokes the doctrine that a party cannot sue on one cause of action and recover on another and asserts that plaintiff has sued on an itemized account and recovered on an account stated. This, however, is not plaintiff’s theory of this case. It was not attempting to recover on an account stated and the trial court did not find for it on that theory. It is true that there was some evidence introduced, which, if it had been offered for that purpose, might have sustained a finding that there was an account stated between these parties. This evidence is to the effeсt that plaintiff rendered defendant an itemized statement showing the amounts due and that defendant retained the same without in anyway questioning the сorrectness of the account. Had plaintiff sued on an account stated, this evidence might have sustained a finding for it on that theory. [McGuire v. De Frese,
It is also held that the doctrine of an account stated, arising from the failure of the one receiving the stated account to object thereto, only applies in favor of the party rendering the account and against the one who receives and acquiesces in its correctness. The cоnverse, however, is not true and the one receiving the account and failing to object thereto cannot thereby invoke this doctrine against the oue furnishing such account. The law is stated in 1 Oyc. 370, thus: “While the rule that silence without objection within a reason
The judgment will therefore, be affirmed.