Ryan v. Gross, 48 Ala. 370

Ryan v. Gross

48 Ala. 370 | Ala. | 1872

PECK, C. J.

1. The material and only real question in this case is, as to the character of the account, the foundation of the appellee’s action in the court below. If not an account stated, then the action was barred by the statute of limitations of three years.

Mr. Chitty says: “The present rule is, that if a fixed and certain sum is admitted to be due to a plaintiff, for which an action would lie, that will be'evidence to support a count upon an account stated.” — 1 Ch. Pl. 358, 14 Am. ed. from 6th London ed., corrected and enlarged.

In Knowles et al. v. Michael et al., (13 East. 133,) Lord Ellenborough, C. J., says: “ If there were an acknowledg*374ment by thl defendant of a debt due upon any account, it was sufficient to enable tbe plaintiff to recover upon tbe count, for an account stated.”

In 2 Greenl. Ev. § 126, it is said: “In support of tbe count upon an account stated, tbe plaintiff must show there was a demand on bis side, wbicb was acceded to by tbe defendant. There must be a fixed and' certain sum admitted to be due; but the sum need not be precisely proved as laid in tbe declaration.” Again: “ Tbe admission itself must be voluntary, and not qualified. But it need not be express and in terms; for’ if tbe account be sent to tbe debtor in a letter, wbicb is received but not replied to in a reasonable time, tbe acquiescence of tbe party is taken as an admission that tbe account is truly stated.” — See, also, Langdon et al. v. Roane’s Adm’r, 6 Ala. 527.

A recovery on a count upon an account stated can only be bad when a certain and precise sum is admitted to be due; an acknowledgment of a debt, but without naming or referring to a sum certain, will not enable a plaintiff to recover on this count, even nominal damages. — 1 Ch. Pl. 359.

Tbe original form or evidence- of tbe debt is of no importance, under tbe count upon an account stated; for tbe stating of tbe account alters tbe character of the debt, and is in tbe nature of a new promise or undertaking. If tbe orignal debt be an account for goods sold, tbe items need not be proved; for tbe action is not founded upon them, but upon tbe defendant’s assent to tbe sum ascertained to be due. — 2 Greenl. Ev. § 127. In other words, tbe action is not founded upon tbe original liability, but upon tbe new promise, wbicb may be either expressed or implied. It is not even necessary that tbe original demand should be a legal demand, recoverable at law; it may be of an equitable nature only. — Clu on Contr. 648, a.

2. Taking these principles and authorities as our guide, we are led to tbe conclusion that tbe evidence of the plaintiff himself, who was examined as a witness in bis own behalf, fails to show that tbe account exhibited and made a part of tbe bill of exceptions can be regarded as bn account stated.

*375No fixed or certain sum was at any time admitted by tbe defendant to be due to the plaintiff. Tbe account, when presented, was not acceded to by tbe defendant, nor was there any acknowledgment by ber that sbe owed tbe plaintiff any thing, but a persistent denial, from tbe beginning, that sbe was bable to pay said account or any part of it. There was clearly no admission by defendant that sbe was indebted to tbe plaintiff for any fixed or certain sum, or for any sum whatever, but a prompt denial that sbe owed him any thing.

Tbe most that can be said of this evidence is, that defendant did not, in so many words, deny or dispute that tbe items of said account were correctly stated, but it was a clear denial that sbe was liable to pay it, and a refusal on ber part in any wise to settle it. This evidence was insufficient to change tbe character of said account from that of an ordinary account for goods sold to an account stated. To constitute an account stated, it must receive tbe assent of both parties. — Carlisle v. Davis, 9 Ala. 858. A certain fixed sum must be admitted by the defendant to be due to tbe plaintiff. — 1 Cb. PI. 358. It is not sufficient for tbe plaintiff to show that there was a demand on bis side, but be must also prove it was acceded to by tbe defendant, otherwise it would be considered to be an account stated. — 1 Greenl. Ev. § 126, supra.

Tbe defendant and ber husband were examined as witnesses, but their version of tbe matter was not materially different from that given of it by tbe plaintiff. Tbe evidence of tbe defendant perhaps might be sufficient to enable tbe plaintiff to recover on tbe common count for goods sold, if tbe statute of limitations were out of tbe way; that, however, is not tbe question to be decided in this case. Tbe statute of limitations is rebed upon by tbe defendant, and tbe plaintiff seeks to avoid this defense, and says the evidence shows that tbe account was changed from an open, to an account stated, which is only barred by tbe statute of six years.

3. Erom what has been said in this opinion, it is readily seen that tbe charge given by tbe court is erroneous. It *376improperly instructs the jury, that the mere admission of the defendant that the items of the account were correct, although accompanied with a denial that she was liable to pay the same, was sufficient to make said account an account stated; and that suit could be brought upon it within six years. To enable a plaintiff to recover on a count upon an account stated, he must prove, either an actual accounting together, or — what the law holds to be equivalent — an admission by the defendant, expressed' or clearly implied, that a fixed certain sum is due to the plaintiff.

The charges asked by the defendant, and refused by the court, are consistent with this opinion, and should have been given.

Let the judgment be reversed, and the cause remanded for another trial. The appellee will pay the costs.