Riley v. Mattingly

42 App. D.C. 290 | D.C. | 1914

Mr. Justice Robb

delivered the opinion of the Court:

Inasmuch as the effect of the enforcement of the 73d rule is to deprive the defendant of a trial on the merits, the plaintiff’s affidavit must be direct and unequivocal. St. Clair v. Conlon, 12 App. D. C. 163. The affidavit of defense, however, is sufficient to prevent the entry of summary judgment if, taken as a whole, it convinces the court that it was made in good faith and presents substantial reasons why the rule ought not to be enforced. Codington v. Standard Bank, 40 App. D. C. 409. Tested by these rules, did the court err in entering judgment in the present case ?

An account rendered, and not objected to within a reasonable time, is to be regarded as admitted by the party charged to he prima facie correct, and may not be impeached save for fraud, error, or mistake. Gordon v. Frazer, 13 App. D. C. 382; Talcott v. Chew, 27 Fed. 273; Rehill v. McTague, 114 Pa. 82, 94, 60 Am. Rep. 341, 7 Atl. 224; Shipman v. Bank of State, 126 N. Y. 318, 12 L.R.A. 791, 22 Am. St. Rep. 821, 27 N. E. 371; Louisville Bkg. Co. v. Asher, 112 Ky. 138, 99 Am. St. Rep. 283, 65 S. W. 133. And in the Federal courts, when the facts are clear, it is a question of law as to what is to be regarded as a reasonable time. Wiggins v. Burkham, 10 Wall. 129, 19 L. ed. 885; Standard Oil Co. v. Van Etten, 107 U. S. 325, 27 L. ed. 319, 1 Sup. Ct. Rep. 178. Plaintiff's’ affidavit of merit in the present case contains a statement that the account forming the basis of the action was held by the defendant for a period of eight months without being disputed in any way. This statement is not met or attempted to be met in the affidavit of defense. It is apparent, therefore, that the account rendered became an account stated. Since the affidavit of defense does not raise any question as to fraud, accident, or mistake, but merely questions the measure of liability, it is clear that no defense to the action has been stated. In other words, defendant merely says that plaintiffs’ bill is too high. This averment raises no question of either accident or mistake.

Judgment affirmed, with costs. Affirmed,.