81 N.Y. 268 | NY | 1880
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *270
It appears from the proof, and was conceded on the argument, that the claim set forth in the complaint for a second cause of action has been fully paid and satisfied. There is in dispute in the case only the claim set forth in the complaint as the first cause of action. That is strictly a cause of action on an account stated. It is that and nothing else. To maintain the action as averred in the complaint, the plaintiff must prove an account stated; that and nothing else will support his allegations. An account stated is an account balanced and rendered, with an assent to the balance express or implied; so that the demand is essentially the same as if a promissory note had been given for the balance. (Bass v. *271 Bass, 8 Pick. 187.) By the same authority, an account closed is not an account stated. (And see Mandeville v. Wilson, 5 Cranch, 15.) There must be an assent by the party to be charged, either express or fairly implied. (Stenton v. Jerome,
The plaintiff wholly failed to make out the cause of action sued upon. He asked no amendment of the pleadings. It was right to dismiss the complaint for the failure to make proof of what it averred.
It is urged that as the averments of the answer show the true contract between the parties, as shown by the proofs, the complaint may now on appeal be amended so as to conform to the proofs, and judgment be given thereon for the plaintiff; andBate v. Graham (
Some exceptions were taken upon the admission of evidence. *273 They do not call for a reversal of the judgment, and it should be affirmed.
All concur.
Judgment affirmed.