31 Mont. 68 | Mont. | 1904
delivered the opinion of the court.
In this action the plaintiff seeks to recover from the defendant the sum of $12,665, balance alleged to be due upon an account stated. It is alleged that on September 8, 1900, in Butte City, Montana, an accounting and settlement was had between the plaintiff and the defendant; that then and thereupon an account was stated between them; that upon such statement a balance of $20,665 was found due to the plaintiff from the defendant; and that the defendant then and there agreed to pay the same to plaintiff. It is further alleged that on the same day the defendant paid to plaintiff the sum of $8,000, leaving a balance due of $12,665, no part of which has been paid. Defendant answered by general denial of all the allegations of the complaint.
The action was commenced on February 5,1901. The answer was filed on June 13th. In the meantime, on March 15th, the defendant served upon plaintiff a written demand, of which the following is a copy: “The defendant in the above-entitled cause hereby demands an itemized account of the items of indebted
The only question presented arises out of the action of the court in sustaining defendant’s objection. Section 743 of the Code of Civil Procedure reads as follows: “It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within five days, or such further time as the court may allow, or may be agreed to by the parties, after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular.”
A considerable portion of appellant’s brief is devoted to a discussion of the demand and the minute entry. It is said that both mention an itemized account, instead of a copy thereof, for which only the statute authorizes a demand. It is also said that the minute entry contains no direction to the plaintiff to furnish anything, and therefore is not in substance an order.
The theory upon which the district court proceeded was that the statute applies to actions on accounts stated as well as to those upon open, unsettled accounts. In suits upon the latter class of accounts the defendant is entitled to know the specific demand or demands made against him, and, when the complaint does not set forth the items of the charges making up the sum total, he is entitled to a bill of particulars to inform him of them, so that he may make proper defense. A copy of the account as kept by the plaintiff is the bill intended by the statute.
In an action upon an account stated, the situation is different. An account stated is an agreement between the parties, either express or implied, that all the items are correct. (Voight v. Brooks, 19 Mont. 374, 48 Pac. 549; Auzerais v. Naglee, 74 Cal. 60, 15 Pac. 371; 1 Waite’s Actions and Defenses, 191.) The action is based upon the agreement, the consideration of which is the original account, and the agreement has the force of a contract. This contract is the cause of action, and the plaintiff must recover upon it, or fail in the action. (Volkening v. De Graaf, 81 N. Y. 268; Holmes v. Page, 19 Ore. 232, 23 Pac. 961; Coffee v. Williams, 103 Cal. 550, 37 Pac. 504; Estee’s Pleadings, (4th Ed.) Vol. 1, 616.) It is therefore not necessary, nor is it permissible, to prove the items of the original account. They may not be inquired into or surcharged, except upon the ground of fraud, error or mistake in the ascertainment of the balance (Auzerais v. Naglee, supra; Hawkins & Co. v. Long, 74 N. C. 781), and then only when the fraud, error or mistake upon which the agreement is sought to be impeached is specifically alleged in the answer (Auzerais v. Naglee, supra; Coffee v. Williams, supra; Kronenberger v. Binz, 56 Mo. 121.)
Section 743, supra, can have no application to such a case. It, in terms, applies only to actions upon open, unsettled accounts, in which it is necessary to examine and establish the items going to make up the sum total, or an alleged balance
The judgment and order are therefore reversed, and the cause remanded, with directions to the court below to grant a new trial.
Reversed and remanded.