77 Ala. 394 | Ala. | 1884
The plaintiffs had their business residence in Pennsylvania. The defendant resided in Alabama. In the progress of the trial, the defendant offered testimony — himself being the witness — that he had furnished to the plaintiffs an itemized account of the claim he pleaded in set-off. The account was for cotton, alleged to.have been sold and shipped to plaintiffs, on which defendant claimed there was a balance due him. Witness testified, that plaintiffs retained the account, and, while they objected to the claim on other grounds, they made no objection to the alleged weights of the cotton. On cross-examination, this witness stated he had not seen the cotton weighed, but that the weights were furnished to him by the public weigher. Plaintiffs moved to reject from the jury so much of the account furnished, as related to the weights of the cotton. This motion was overruled, and they excepted. The testimony wras clearly admissible, as part of the account furnished, and as some evidence tending to show an acquiescence in that part of the account which was not objected to. 2 Greenl. Ev. § 126. The weight and application of the testi
It is undoubtedly the law, that if a debtor, to whom an account is rendered, retains it without objection for an unreasonable time, this is enough to raise the presumption that he admits its correctness. — Langdon v. Roane, 6 Ala. 518 ; Burns v. Campbell, 71 Ala. 271, 286. It is, however, only evidence of an admission, and can not be more conclusive than an express admission that the account is correct. Either is subject to disproof; and when it is satisfactorily shown that the account is not correct; this destroys the force of the admission, and shows it to have been made in mistake. This is the rule, when a right of recovery is claimed on the strength of such admission, express or implied. Wbeu, however, a settlement has been made, and it is sought to re-examine, and overcharge or falsify the account, to authorize relief, there must, as a general rule, appear to have been fraud, or gross mistake in the reckoning. — 6 Wait’s Ac. & Def. 427.
The first charge asked by plaintiffs states the principle too strongly, was likely to mislead, and, on that account, was rightly refused. -The second charge asked is still more objectionable. It limits the right to resist the force of such admission to cases of fraud. The Circuit Court laid down the true doctrine in the charge given.
There is no error in the record, and the judgment of the Circuit Court is affirmed.
