Heyward v. Ramsey

31 Ga. App. 14 | Ga. Ct. App. | 1923

Bloodworth, J.

This is a suit upon an account stated. In Ward v. Stewart, 103 Ga. 260 (3), 262 (29 S. E. 872), it was held that “an account stated is an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, and promising payment.” See also, to the same effect, Borders v. Gay, 6 Ga. App. 735 (65 S. E. 788); Shores-Mueller Co. v. Bell, 21 Ga. App. 195 (1) (94 S. E. 83); Moore v. Hendrix, 144 Ga. 646 (1a) (87 S. E. 915). Thus, it is apparent that the necessary elements of an “account stated” are previous transactions, the fixing of an amount due in respect to such transactions, and a promise to pay. It is true that the promise to pay may be either express or implied, and, therefore, in order for a petition to be held defective because of a failure to allege such a promise, the defect should be pointed out by a special demurrer. Shores-Mueller Co. v. Bell, supra. However, in the instant case none of the elements of an account stated were alleged, and the defendant specifically demurred to the petition on the ground “that the allegations therein do not show how the alleged account is either a stated account or an agreed account.” It follows that the trial court erred in overruling the special demurrer, and this error rendered the further proceedings in the case nugatory.

(a) In view of the allegation in the petition, that the “indebtedness is due upon an account stated and agreed to ” by the defendant, and the statement in the brief of counsel for the plaintiff; in error that' “this is a suit upon an account stated,” and under all the allegations of the petition, we cannot hold that the suit is one upon an “open account” rather than an “account stated.”

Judgment reversed.

Broyles, 0. and Lulce, J., concur.