21 Ga. App. 194 | Ga. Ct. App. | 1917
(After stating the foregoing facts.)
1. We think the demurrer to the defendants’ answer was properly overruled. An “account stated” is an agreement by which parties who have had previous transactions fix the amount due in respect thereto, and promise payment. Moore v. Hendrix, 144 Ga. 646, 648 (87 S. E. 915); Borders v. Gay, 6 Ga. App. 734 (65 S. E. 788). While-the'quoted letter to the plaintiff from the defendant principal, A. J. Bell, certainly undertakes to fix the amount due in respect to the items of their previous transactions, it lacks one of the necessary requirements in order to constitute an “’account stated,” in that it fails to embrace á promise to pay. It was held
2. Under the special facts of the case it does not appear that there was error in the admission of the testimony complained of in the 4th ground of the motion for a new trial. While the testimony objected to in the 5th ground was irrelevant and immaterial, it could not have harmed the plaintiff’s cause, and its admission, therefore, affords no ground for reversal.
3. The charge of the court as to the defendant P. C. Bell, complained of in the 6th ground of the motion for a new trial, was not error. While, under the terms of the contract, acceptance was provided for by the plaintiff at its home office in Iowa, and while as a rule a contract is considered as entered into at the place where the acceptance is made, still, no statute of the State of Iowa having been pleaded, it is presumed that the common law is of force and must govern, and under it the defense actually set up by Mrs. Bell, that her contract of guaranty did not bind her, was good.
4. The excerpts from the charge, complained of in the 7th and 8th grounds of the motion for a new trial, if taken by themselves and disconnected from their context, and especially that portion of the charge immediately following, might seem to have confused the method of payment with the defendant’s liability under the contract; still we think that the charge as a whole makes it clear that the defendant’s liability was not thus improperly limited, and we do not think that the jury could have been misled thereby.
5. The evidence authorized the verdict, and the court did not err in refusing the grant of a new trial.
Judgment affirmed.