Plaintiff brought suit in assumpsit against the defendants, filing a declaration on the common counts and adding a count for an аccount stated. That part of the declaration essential to decision herein reads as follows:
“2. That defendants, on the Í8th day of December, Í952, were indebted to plaintiff in the sum of $29,- *183 427.10, for money theretofore had аnd received by defendants for the nse of plaintiff, as shown by the statement of account attached herеto and marked exhibit ‘1.’ * * *
“8. That on December 22, 1952, plaintiff submitted a statement of account to defendants, in the-amount of $29,427.10, and that defendants acknowledged in writing on March 27, 1953, said indebtedness to plaintiff, and that thereupon an' aсcount stated resulted from the dealings had between them.
“9. Tliat thereupon, and in consideration thereof, dеfendants promised plaintiff payment of the aforesaid money.
“10. That, though often requested by plaintiff so to dо, defendants have not paid any of said sums, to-plaintiff’s damage in the sum of $29,427.10. ■
“Wherefore, plaintiff prays judgment in the sum of $29,427.10 together with interest and costs of this, action.”
The statement of account attached to the .declaration, referred to in count 2 as exhibit “1,” showed the number of “toss-board stand assembly units,” contracted for by the defendants, which had been delivered, others completed or in process but not delivered, the material on hand, the money received and balance claimed due, $29,427.10, as follows:
“Units delivered 1,500 at 75^ ....... $ 1,125.00
11,500 at 90fS ____:.. 10,395.00
“Units completed
“On hand 15,469 .................... 13,922.10
“Units in process 8,000, 75% completed 5,600.00 “Matеrial on hand $4,635.00 .......... 4,635.00
Total........................ 35,677.10
“Money received.......:.. $ 4,250.00
“Money due to date....... 31,427.10
“Dec. 22, 1952 ............ 2,000.00
“Balance due .............. $29,427.10”
*184 Issue was joined by the defendants pleading a general denial. Thereupon the plaintiff filed a mоtion for summary judgment, based on the pleadings and on affidavits filed by the plaintiff stating, in substance, that the plaintiff had entеred into a contract to produce and deliver to the defendants 50,000 “toss-board stand assembly units,” had purchased and processed specially-cut material for making the units, had delivered 13,000 units to the defendants, had eithеr completed or partially processed the remaining units, had been paid $6,250, that the defendants had admitted the balance due as claimed by the plaintiff in his declaration as an “account stated,” :$29,427.10. Thereforе the plaintiff moved for a summary judgment for that amount.
The defendants opposed the motion, filing affidavits claiming thаt plaintiff’s motion for a summary judgment did not purport to be on an account stated, that it and the affidavit attached to it contained questions of fact which could be determined only by a trial of the issues, stating circumstancеs showing that the plaintiff had agreed to withhold further deliveries of units until further orders, alleging in detail facts tending to show that thе plaintiff had not complied with the alleged contract in several particulars in the manufacture of the “units,” and claim that the defendants had already paid plaintiff more than the amount owed him.
The court granted plaintiff’s motion and entered .a summary judgment of $29,457.10 * plus $1,185.23 interest, and costs, for the plaintiff, from which the defendants apрeal.
In granting a summary judgment the court, in a .lengthy opinion, analyzed and discussed the facts alleged by the parties in their several affidavits, and referred to copies of letters (which apparently were *185 not received as exhibits) possibly having some bearing on the claims of the parties.
Defendants urge for reversal that the “pleadings and affidavits did not establish an account stated,” and, further, that the record shows questions of fact which bar a summary judgment.
Plaintiff’s claim of an “account stated” is based on a statement made in a letter sent to plaintiff by the defendants before this suit was started, in which it was stated by defendants:
“We hereby acknowledge our indebtedness to you and request your consideration for the time being.”
Conceding, arguendo, that plaintiff’s declaration is based on an “accоunt stated” (which defendants have put in issue by their general denial), we conclude that the above statement is nоt sufficient to amount to or create an account stated, or an admission by the defendants that they owеd plaintiff $29,427.10.
“The conversion of an open account into an account stated, is an operation by which the parties assent to a sum as the correct balance due from one to the other; and whether this operation has been performed or not, in any instance, must depend upon the facts. That it has taken plаce, may appear by evidence of an express understanding, or of words and acts, and the necеssary and proper inferences from them. When accomplished, it does not necessarily exclude аll inquiry into the rectitude of the account.” White v. Campbell,25 Mich 463 , 468.
“An account stated means a balance struck between the рarties on a settlement.”
Watkins
v.
Ford
(syllabus),
To the same effect, see
Kusterer Brewing Co.
v.
Friar,
*186
Pabst Brewing Co.
v.
Lueders,
We agree with appellants that the motions аnd their affidavits filed by the parties show questions of fact which preclude the entry of a summary judgment for the ■ plaintiff, fоr the amount claimed. Among the decisions here which indicate circumstances under which it is error to enter а summary judgment, where there are questions of fact to be determined, are the following:
Grand Dress, Inc.,
v.
Detroit Dress Co.,
It is not necessary to еncumber this opinion with a discussion of the facts and circumstances in each of the above cases wherein a summary judgment has been set aside by this Court and the case remanded for further proceedings.
Judgment set aside and case remanded. Costs to appellants.
Notes
Obviously au error. Plaintiff’s claim was for $29,427.10.