138 Wis. 304 | Wis. | 1909
Lead Opinion
The following opinion was filed January 5, 1909:
The defendant contends that the court erred in opening the account and awarding plaintiff a recovery for a balance on a restatement of it, because the undisputed facts show that the parties settled the account between
It is urged by plaintiff that he in fact never assented to a settlement and payment of the account, and hence his conduct in the matter does not warrant the conclusion that the account became stated and paid. This contention omits consideration of the account as rendered, his acceptance of the amount tendered as payment of the whole amount due him, his long silence respecting the matter, and his failure to bring it to defendant’s notice. Under the circumstances such acquiescence furnishes a good basis for the inference that he assented to the settlement defendant proposed by the account rendered. Such assent is as irrevocable as if he had expressly given it. Plaintiff was in duty bound to give defendant notice of his disapproval of the account within a reasonable time. It devolved on him to exercise reasonable diligence, to give proper attention to the transaction, and repudiate the account if he desired to avoid the effect of the settlement and q>ayment of the account proposed by defendant. He did not act with reasonable diligence and vigilance to repudiate it, and his conduct permits of but one reasonable inference, namely, that he
“If such other keeps tbe account and fails to object within a reasonable time, tbe facts raise a presumption or inference of acquiescence. That is all. Such presumption or inference is more or less strong according to circumstances. Tbe neglect to return or object may be for such a length of time as to render such presumption conclusive on tbe question of acquiescence, so as to make an account stated.”
Tbe following cases are illustrative of this principle, which we find controls this ease against plaintiff’s contention: Pabst B. Co. v. Milwaukee, 126 Wis. 110, 105 N. W. 563; Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246; Voss v. N. W. Nat. L. Ins. Co. 137 Wis. 492, 118 N. W. 212.
Since, then, tbe account was settled and paid, no ground is shown for opening it and allowing plaintiff to charge defendant any additional sum as due bim. No fraud or mistake is claimed. Under tbe circumstances principle and public policy demand that when tbe account was settled and adjusted it became conclusive on tbe parties. Martin v. Beckwith, 4 Wis. 219; Klauber v. Wright, 52 Wis. 303, 8 N. W. 893; Continental Nat. Bank v. McGeoch, 92 Wis. 286, 66 N. W. 606.
We are led to tbe conclusion that tbe court erroneously opened a stated account, and that tbe complaint should have been dismissed.
By the Gouri. — Judgment reversed, and tbe cause remanded with directions to award judgment dismissing tbe complaint.
Dissenting Opinion
(dissenting). Tbe contract between the parties was plain and unambiguous. Under it tbe defendant bad no right whatever to compound interest. Its counsel does not claim or argue that it bad sucb right. Tbe defendant suffered no loss, wrong, or injury by reason of tbe failure of tbe plaintiff to object to tbe statement of tbe account as rendered. It does not claim any injury by reason of sucb failure. There was no controversy between tbe parties, before or at tbe time of the remittance, as to what amount was due. It was a mere matter of mathematical calculation, under a plain contract, to ascertain it. By reason of its erroneous and unlawful computation of interest tbe defendant retained moneys that belonged to tbe plair.tiff, and which, in tbe exercise of good faith and common honesty, it was bound to pay him.
Plaintiff and defendant and its predecessor bad a large-number of business transactions amounting to large sums of money and covering a period of over twenty years. They appeared to mist each other mutually. Statements were rendered from time to time, and whenever anything was found incorrect in them it was rectified regardless of when tbe error was discovered. Tbe plaintiff banded tbe statement here involved to bis attorney shortly after it was received, to secure bis opinion on tbe correctness of tbe computation of interest and to collect tbe balance due him if any. In view of tbe course tbe parties pursued in their dealings it is particularly harsh and inequitable to foreclose tbe plaintiff from asserting bis rights. Tbe check sent plaintiff did not in itself purport to be in full of account. If it did so purport it would make no difference. A receipt in full, when it is not in fact a payment in full, can always be contradicted. This is elementary law. Prairie Grove C. Mfg. Co. v. Luder, 115 Wis. 20, 27, 89 N. W. 138, 90 N. W. 1085; Weidner v. Standard L. & A. Ins. Co. 130 Wis. 10, 15, 110 N. W. 246. Tbe defendant bad a right to accept tbe check and to treat it as payment on account. Tbe amount of money represented by it, and more,
The court holds that, by accepting the check and retaining the account without telling the defendant that he was not willing to accept less than was due, the plaintiff cannot recover. The defendant should know as well as the plaintiff that it had not paid according to its contract. But, whether the plaintiff was chargeable with legal acumen superior to that of the defendant or not, I think he should be permitted to recover.
Whether the transaction be considered from the standpoint of estoppel, of waiver, of accord and satisfaction, of an account stated, of acquiescence,-of abandonment, or of a settlement, it still involves the question, Did plaintiff, by his failure to object to the accuracy of the account rendered, deprive himself of the right to collect' what was justly his due ? The rendering of an account, and its retention without objection after the lapse of time, becomes an account stated and a strong proof of its correctness. Engfer v. Roemer, 71 Wis. 11, 36 N. W. 618. A charge that, “where one man makes out an itemized statement of his accounts with another, and mails or hands it to such other, and it is retained without objection, this is in law a settlement/’ is incorrect. The act is not a settlement. Such facts “raise a presumption or inference of acquiescence. That is all. Suph presumption or inference is more or less strong according to circumstances. The neglect to return or object may be for such a length of time as to render such presumption conclusive of acquiescence, so as to malee an account stated.” Rose v. Bradley, 91 Wis. 619, 623, 65 N. W. 509.
The cases of Cobb v. Arundell, 26 Wis. 553, and Ryan D. Co. v. Hvambsahl, 92 Wis. 62, 65 N. W. 873, hold that the sending of a statement of account by one party, and its reten
“It is quite uniformly held that, when a demand in the form of a bill or account is delivered to the debtor, his conduct with reference thereto may be significant, and his failure to object within a reasonable time be construed prima facie as an admission that such bill or account is correct; not at all conclusive either on the fact of admission or on the fact of correctness, but prima facie, subject to be overcome by other evidence.” Jones v. De Muth, 137 Wis. 120, 118 N. W. 542, 543.
But an account stated is only prima facie evidence that the balance struck is correct. Jefferson Co. v. Jones, 19 Wis. 51. While the incorrectness of a stated account may be shown, the -evidence to surcharge it should be clear and satisfactory. Wilson v. Runkel, 38 Wis. 526; Marsh v. Case, 30 Wis. 531; Hoyl v. McLaughlin, 52 Wis. 280, 8 N. W. 889; Hill v. Durand, 58 Wis. 160, 15 N. W. 390. One of the late expressions of the court as to the effect of stating an account is that it is '“only prima facie evidence of the correctness of the balance, and not conclusive upon it,” and unless such balance is struck as the result of mutual concessions and a compromise, or the acts in reference thereto create an estoppel in pais, it “maybe impeached for mistake or error in law or in fact with respect to the items included in it.” Segelke & K. Mfg. Co. v. Vincent, 135 Wis. 237, 115 N. W. 806.
In many other jurisdictions the receipt and retention of an account without comment is only prima facie evidence of assent to the correctness thereof. 1 Cyc. 371, and cases cited. Even a settlement deliberately made may be set aside on clear proof of fraud or mistake. Klauber v. Wright, 52 Wis. 303, 8 N. W. 893; Hill v. Durand, supra.
The contract here furnishes proof conclusive that a mistake of law was made in stating this account, if it was stated, or in making the settlement, if one was made, unless we assume that it was the purpose of the plaintiff to give something
It would seem clear from tbe foregoing authorities tbat tbe failure of tbe plaintiff to object to tbe account did not preclude him from showing tbat it was erroneous. At best it was evidence tending to show assent on bis part as to its correctness. But if tbe transaction amounted to stating an account, still tbe stated account was not conclusive. Tbe fact tbat any weight at all should be given such retention proceeds upon tbe theory of an implied assent or admission tbat the contents of tbe paper are correct because not demurred to. Many courts bold tbat such action is no evidence of consent; others tbat it is weak evidence. Tbe doctrine seems to have originated at tbe trial of Horne Toolce for treason (25 How. St. Tr. 1, 120), where treasonable letters found in his possession were offered in evidence against him on tbe theory tbat tbe receipt and retention of such letters by him without protest or objection to their contents was tantamount to an approval of such contents. Defendant’s objection to tbe letters was not wanting in logic. Tbe accused stated tbat be was afraid be was guilty of blasphemy as well as of treason, under tbe ruling of tbe court admitting tbe letters; tbat be received many curious letters tbat be did not answer, and tbat among them were some from a man named Oliver Overall, “who . . . endeavored to prove to me tbat be was God tbe Father, Son and Holy Ghost. He proved it from tbe Old Testament — in tbe first place tbat be was God tbe Father, because God is Overall; tbat is, God over all. He proved be was God tbe Son from the New Testament — ‘Verily, verily I am He;’ tbat is, Veral I, Veral I, I am He. Now, if these letters written to me, which I from curiosity have preserved, but upon which I have taken no step, and to which I have given no answer, are produced against me, I do not know what may become of me.” To which tbe chief justice replied: “If you can treat all tbe letters tbat
The evolutionary progress of the law on the subject under consideration has led to the following results: (1) Receipt and retention of a statement of account without protest raises a presumption of assent to its correctness; (2) after the lapse of an indeterminate period, if the silence is continued, the statement so furnished automatically becomes an account stated; and (3) after the lapse of another indeterminate period, the account so stated automatically becomes conclusive of the rights of the parties. The last proposition is the result .of the decision in this case, and it is with this that I particularly dissent.
The cases of Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246, and Pabst B. Co. v. Milwaukee, 126 Wis. 110, 105 N. W. 563, rest upon an entirely different principle from that involved in this case, and I do not think they are authority for the decision here made.
A motion for a rehearing was denied March 9, 1909.