Gibson v. Sumner

6 Vt. 163 | Vt. | 1834

The opinion of the court was pronounced by

Collamer, J.

— It is frequently the practice of accountants, from time to time, to strike balances in their books, for convenience, like bankers’ rests, from which to cast interest. Such balances are ex parte, and do not close or effect the currency of the account; nor could insimul com-putassent be sustained thereon. But when the parties mutually reckon their accounts, and agree on the balance, in which reckoning there is neither fraud or mistake, and the books are balanced accordingly, this is no longer a current account. It is an account settled or stated. For this sum a count for an account stated might well be sustained, for to sustain such action no writing is necessary. — 2 Stark. Ev. 123, 125. — Knowls vs. Mitchel, 13 East. 249. — Highmore vs. Primrose, 5 Maule & Selwin, 65.

And if so understood by the parties, the balance might well constituite an item in the new account, as was done between these parties, and as is the general practice in this country.

In the case Hutchins & Pickett vs. Olcott, 4 Vt. Rep. the court in effect hold that the receiving a note for the amount of an account, if there is no fraud or mistake, is a payment of the account; and well remark, that such is the understanding of the people. Upon the same principle, an account stated between the parties, especially if the books be balanced accordingly, and there be no deceit or mistake, is a settled account; and such is the universal understanding and usage here.

It is urged that the plaintiff’s book did not furnish evidence that the settlement was mutual, and possibly had he sued before a justice, the defendant might have denied the settlement. The plaintiff’s book showed it a reckoning; the parties both concede it was a mutual settlement, arid the court cannot presume that, which the parties concede to be a fact, would ever have been denied, or if denied, could not have been proved. This settlement was made and entered in the usual manner; and if a plaintiff can pass over one, he may pass twenty settlements; and whenever the defendant owes him a single dollar, he may treat his account, of twenty years currency, as all open, and sustain an action at the county court. Such a course is not to be countenanced.

The county court had not jurisdiction, unless the debit side of the plaintiff’s book exceeded one hundred dollars. Such was not the case, after the settlement. Therefore,

Dismissed for want of jurisdiction.