9 Mo. App. 370 | Mo. Ct. App. | 1880
delivered the opinion of the court.
The plaintiffs are husband and wife, and so are the
The cause of action familiarly known as “ account stated ” is made up of several elements of fact, no one of which can be dispensed with. There must be an accounting between the parties, a balance ascertained, and a pi-omise to pay such balance. When these elements concur, the indebtedness -assumes a new form, so that it becomes no longer necessary to prove how it was originally created. But if any of them fail, the proofs must fall back' upon the original cause or causes of action.
While it is not required that a pleading shall state either evidence or conclusions of law, it is yet essential that it aver every fact legally necessary to constitute the claim
It is not always necessary to prove an express promise to pay. The promise .may be legally inferred from an acquiescence in the result of the accounting; which acquiescence, again, may be inferred from circumstances — such as the keeping of the account for a length of time and offering no objection against it. But such circumstances and such inferences cannot supply omissions in the pleadings. The most they can do will be to sustain the necessary averments in the pleadings when they are properly framed. In Emory v. Pease, 20 N. Y. 62, the court said: “The averment that the court had made a state-' ment and delivered it to the defendant, who made no objection to it, does not necessarily establish the required conclusion, even if it has a tendency in that direction ; and consequently we cannot.hold that the fact of an account stated has been pleaded in any manner or form.” It is thus apparent that if, in the present case, the plaintiffs’ reply had gone further, and alleged that the “ accountings ” and “settlements” had been left with the defendant, and .that she had made no objection to them, there would still have been no sufficient averment of an account stated.
The judgment must be reversed and the cause'remanded.