Powell v. Noye

23 Barb. 184 | N.Y. Sup. Ct. | 1856

By the Court. S. B. Strong, J.

The parties had a meeting in February, 1854, when the plaintiffs produced and delivered to the defendant a statement of the accounts between them, specifying the balance due, and also some papers explanatory of some of the items included in the statement. The defendant took the statement to his hotel to see whether it was correct, and promised to settle before leaving New York. He left the city without again seeing the plaintiffs, or sending any communication to them. On the 21st of March following, he wrote to them that he intended to make good the balance of account against him, and that he had not had time to examine the accounts carefully, but he presumed they were correct. On the 6th of April following, he wrote that he should have the accounts examined in a few days, and that the balance would be paid “at the earliest day possible.” On the 17th of the same month he wrote that as regarded sending his notes for the balance, he had no objection, but not at thirty or sixty days ; and he added that he felt anxious to pay it at the earliest day possible. On the 6th of May following, he wrote again, saying, “I cannot consider my obligation to pay the amount any less, as the matter now stands, than if you had my notes. If you desire it, I will send you my due-bill for the amount.” And on the 13th of the following June he again wrote to the plaintiffs, saying, “You demand a certain balance you claim as your due. I have replied I cannot pay it just now.” “You will please to understand in the first place, I shall pay what I owe you at the earliest date possible.” In none of these letters was any fault found with the plaintiffs’ account, or any complaint that the balance claimed was excessive. It seems to me that the whole, taken together, constituted a strong admission of the accuracy of the account. It became a settled account, and the balance was admitted to be due.

It is no objection to the account that a part of it was what was due on certain joint transactions between the parties. When a balance is struck and admitted to be due on partnership transactions, it can be recovered in an action at law.

There was not any pretense of fraud ; nor that the defendant was taken by surprise; nor that he had not, before his admission of the correctness of the account, had full opportunity for examination; nor that he had not in fact fully examined it. Under such circumstances, and when in consequence of the defendant’s admission vouchers may have been destroyed, it would be doing great injustice to suffer the account to be opened, merely because all the papers which were delivered with the accounts were not produced on the trial, or because some of the items were mere balances.

[Kings General Term, October 14, 1856.

The judgment at the special term was right, and should be affirmed, and a new trial denied, with costs.

Brown, S. B. Strong and Emott, Justices.]