11 Pa. 415 | Pa. | 1849
The opinion of this court was delivered by
This action was instituted before a justice, and carried to the Common Pleas by appeal. The plaintiff declared for money had and received to his use, and defendant pleads non assumpsit and payment. There is no doubt or dispute about the plaintiff in error having received the money. He set up objections to the recovery, which may be called technical. Mellon was pro
There is nothing in the objection arising out of Mellon having furnished an account of the rents received, in which commissions were charged, and Campbell afterwards receiving twenty-five dollars. This was no admission of the correctness of such charge. Between merchants dealing togethex*, and merchants having mutual accounts, if an account stated is furnished by one to the other, which is retained for a length of time without objection, it is good evidence in action of account stated. But when there has been no pre-existing debt or dealing between the parties, such a statement as was here furnished, could be no evidence against the defendant. The plaintiff^ as an honest man, could do nothing less than furnish such an account of the moneys he received. To make an account stated, there must be a demand on the one side, which is acceded to on the other; and it usually consists of an account of mutual transactions, drawn up by one party and exhibited to the other. But in this case there was no mutual dealing, no accounts between them, and, as Mellon alleges, no privity whatevex-.
Nor is the objection that Mellon as agent was accountable to his principal, who was accountable to Campbell, of any greater force. Small had no lawful right to receive anything but the debt, interest, and costs, which are allowed. All beyond that was the money of Campbell, and Small could not authorize his attorney to receive
Judgment affirmed.