Moore v. Maxwell & Delhomme

46 So. 755 | Ala. | 1908

ANDERSON, J.

In order to create a stated account there must not only be a meeting of the minds as to correctness of the statement, but there must be a promise by tbe debtor, express or implied, for tbe payment of same. 1 Am. & Eng. Ency. of Law, 437; 1 Cyc. 364. An account becomes stated only when a specified indebtedness is admitted to be due from tbe debtor to tbe creditor. — Loventhal v. Morris, 103 Ala. 335, 15 South. 672. Tbe mere admission that tbe items of an account are correctly stated is not sufficient, unless it appears that tbe debtor expressly or impliedly agreed to pay it. — Ryan v. Gross. 48 Ala. 375. It is true that, if one renders another an account, which he promises to pay or which be retains without objection, it becomes a stated account, because of an express promise to pay in the first instance, or of an implied promise in the second, arising out of a retention of same without objection; but the mere admission of the correctness of the items of an account, with a denial of liability, Avould not malee it an account stated. In other words, in order to render one liable as upon an account stated, he must not only admit its correctness, but must expressly or impliedly admit his liability.

There is no pretense in the case at bar that the account in question, was rendered to the defendant, or that he in any way admitted the correctness or acknowledged his liability fon same. The plaintiffs rely merely upon an account rendered to Biggers, who admitted its correctness. It is true Biggers testified that the defendant gave him authority.to purchase the material, which, if true, would render the defendant liable upon an open account or for material sold; bat a subsequent admission by Biggers, without the authority or knowledge of the defendant, of the correctness of the account, would not render him liable upon an account stated. The account was never presented to him, and it would be a legal absurdity to hold that the subsequent conduct of Biggers amounted to a new or subsequent promise on the part of the defendant to pay the account, notwithstanding he may have originally authorized the purchase of material. It could as well be said that the defendant would be liable upon a promissory note executed by Biggers in settlement of the account for material. Authority to purchase did not, of itself, authorize Biggers to malee subsequent promise or agreements for the defendant. There, being no proof of an account stated, the trial court erred in not giving the general charge requested bjy the defendant as to the second count of the complaint, which we think was in proper form and did not come under the head of those condemned in the case of Goldstein v. Leake, 138 Ala. 573, 36 South. 458.

As this case must be reversed, it is needless for us to decide whether the trial court committed reversible error in not excluding the evidence of Maxwell, after it appeared from his cross-examination that he did not know of his own knowledge of the correctness of the account, upon the theory that the defendant was not disputing the correctness of the account, but merely traversed his liability. It is sufficient to say that evidence which appears to be hearsay should be excluded.

The judgment of the law and equity court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.