31 Misc. 468 | N.Y. App. Term. | 1900
The questions determinative of the result of this appeal are, first — whether the complaint contains allegations of a cause of action upon an account stated; and second — whether the evidence considered most favorably for the plaintiff sufficed to establish an account stated.
We agree with the learned General Term in its view as to the first question, but as to' the second we feel obliged to differ, and will state briefly the reasons. The witness Otto testified that he called upon the defendant in April, 1895, and delivered to him a paper, the contents of which was “ Balance due on amount of account rendered, $132.12,” and told defendant that he represented Lord & Taylor, and that he called to collect the account that was overdue; that defendant offered in payment a lot of books and, upon the nonacceptance of the offer, paid $5 on account and said he was going to pay the whole bill. This evidence called for the submission to the jury of the issue as to the account stated. To establish an account stated, there must be evidence of mutual assent to the account as rendered, either express or implied. Primarily it was necessary to produce evidence that an account showing a balance due had been rendered. And this duty the plaintiff performed, for, there was sufficient evidence to warrant a finding of the rendition of such an account in the circumstances of the delivery, by the witness Otto, of the paper, the contents of which was “ Balance due on amount of account rendered, $132.12,” and the action of the defendant. Erom the words and conduct of defendant, under
The judgment is reversed and a new trial is ordered, with costs to the appellant to abide the event.
| Present: Truax, P. J., Scott and Dtjgro, JJ.
1 Judgment reversed and new trial ordered, with costs to the appellant to abide event.