Schultheis v. Caughey

130 N.Y.S. 373 | N.Y. App. Div. | 1911

Dowling, J.:

Plaintiff sues as assignee of the- claim of Arnold "Deo & Co. against "defendant, the allegation being that he was indebted to that firm in the sum of $586.19'upon an account stated.

Defendant was a customer of the firm, who were stockbrokers and had purchased stock for defendant and advanced moneys on his account as part of the purchase price thereof. A statement of account was mailed "to defendant on or about May 1, 1906, and upon the testimony of one of the firm that they had never received, any objection, oral or written, to the account, it was sought to make it an account stated, although defendant was not claimed to have ever accepted the same or admitted its correctness. Defendant testified that his account with the firm was opened at its One Hundred and Twenty-fifth street branch, whereof E. 0. Ournen was manager; that all his stock dealings were had through Ournen, and that as soon as he received the account in question he complained to Ournen about it and disputed the accuracy of the account which showed the sale of his stocks, claiming that the sale was unauthorized and that the whole transaction was an outrage. He then called Ournen’s attention to the fact that- he had expressed to the chief clerk of the firm, before his stocks were sold, his readiness to pay his account and. take up his stocks, his .call at their main office having been at Ournen’s suggestion. The witness Leo, one of the firm, admitted on cross-examination that E. 0. Ournen was in charge of their One Hundred and Twenty-fifth street, office; that orders were taken there, and that he talked with the customers, advising them when more money was needed, and “in a general way handed the customers up there.”

The defendant’s testimony, before referred to, was not attempted to be contradicted. The learned trial court refused to charge the jury that if, after, the receipt of the account, defendant protested to Ournen and repudiated the account, plaintiff was bound thereby, saying there was no evidence that Ournen “ was the duly authorized representative of the defendant for that purpose.” If this is a clerical error and what was meant was that Ournen was not “the duly authorized representative of plaintiff for that purpose,” then it was error to refuse so to charge, for Ournen upon the undisputed proof was the general manager of the firm and its representative in charge of the One Hundred and Twenty-fifth street branch, and there was no necessity that he should be specially authorized to receive protests from the customers of that branch; that came within the scope of his general authority. If the refusal is to be taken literally, of course, it had no application to the facts in the case. We are of the opinion that the agency of Ournen having been established, and defendant’s testimony as to his protest to him against the accuracy, of the account having been uncontradicted, plaintiff had failed to establish that there was any account stated: To constitute an account stated requires the act of two parties, the debtor and the creditor.

“ There must be a mutual agreement between them as to the allowance and disallowance of the respective claims, and as to the balance as it is struck upon the final adjustment of the • whole account and demands of both’ sides. Their minds must meet as in making other agreements, and. they must both assent to the account and the balance as correct. But this agreement. and assent need not be direct and express, but may be implied from circumstances. If one party presents his account to the other and the latter makes no objection, it may well be inferred that he is satisfied with and assents to it as correct. If an account be made up and transmitted by one party to the other by mail, and the latter keeps it for some considerable time without making any objection he is held to have acquiesced in it. ■. But in all cases there must be proof, in some form, of an express or implied assent to the account rendered by one party to another, before the latter can be held to be so far concluded that he can impeach it only for fraud or mistake.” ' (Stenton v. Jerome, 54 N. Y. 484.) In this case not only is there no proof of any. assent to the account by defendant, either expressed or implied, but there appears the uncontradicted proof of a protest against the account and a repudiation of its accuracy.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event. - ’ ■

Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred. ' .

Judgment and order reversed, new trial ordered, costs to appellant to abide event.