*1 many ment to rescind. aware that We are defini- authorities and text writers
tion phrase “re- meaning restrict by agreement”
scission to “rescission Nevertheless,
subsequent agreement”. there
appears good why no same reason ap- principles
rules not of law should
ply, regardless of agreement when the
rescind is made. reached,
In view of the is conclusions necessary McElhin- discuss
ey’s argument Trust, its conduct
subsequent foreclosure, to the mortgage
ratified a rescission and now es- is
topped deny the same.
The judgment of the trial court af-
firmed.
WILLIAMS, J., BLACKBIRD, C. V. J., WELCH, C. DAVISON, JOHN-
SON, BERRY, IRWIN and JJ„ concur. COMPANY, DRILLING
WEBSTER Error, Corporation, Plaintiff OKLAHOMA, INC., OIL OF
STERLING Defendant Error.
No. 39697.
Supreme Court Oklahoma.
Nov.
237. over partial payments ling thereafter made months, period leaving a about nine $12,436.12 sum of to On due Webster. May year a and a little over due, the full amount become Webster had sent Sterling listing a statement of account $12,436.12, plus inter- sum of est in $1050.90, to- making amount past $13,- tal remaining unpaid due and question Sterling did not cor- 487.02. account, rectness of this but retained without objection for eleven months. See 25; Accounting, Accounts and May On Account Stated 37a. paid $12,436.12— Sterling Webster the exact amount remaining on the principal obligation. The demand- ed has paid. not been petition The alleged also was that there a generally accepted understood and custom usage and industry, in the to the effect that amounts due under that contracts such as here concerned would bear interest at rate of per paid, annum until that and such be, custom and was intended to was, and term of the. contract Spillers, Jr., Spillers Spillers, & G. C. between Webster Sterling. prayer Givens, Tulsa, plaintiff er- for in R. Jack petition was for in accrued interest ror. specified amount, interest accruing there-- Monnet, Murdock, Edward Schwabe & - , payment, after until and for costs Monnet, Tulsa, for defendant error. O. action. Sterling’s petition was demurrer JACKSON, Justice. cause dismissed. sustained and the court, plaintiff trial Drill- In the Webster situation, Company Sterling applicable sued Oil of ing Okla- In this accruing al- aby for accrued is that tested homa well settled rule when demurrer, liberally as a result of cer- must con legedly petition due Webster be parties. plaintiff, tain transactions between and all facts strued favor pleaded, demurrer to amended with Sterling’s together Webster’s all inferences well petition therefrom, may reasonably was the cause be sustained and dis- drawn missed, appeals. Webster be taken as admitted to be true must purposes of demurrer. Correll v. position Plaintiff's is that amended 366, 237 Earley, Okl. P.2d petition alleges up- a cause of action based pe- pertinent appeal, account on an stated. The facts Webster contends On alleged may fairly upon a cause of action alleges summarized as fol- based tition petition performed : account al- lows Webster certain drilling ternatively Sterling pursuant oil well states a of action for in- work, implied agreement the completion contract. After under an earned terest due, arising and before custom indus- sent Webster Sterling, statements of account try. and Ster-
Sterling argues in
under either mitted to
effect that
be true.
It should
noted
theory
Webster,
action,
under
prayed
advanced
cause of
Webster
claim for
recovery
Sterling
shows
its face that Webster’s
interest which
*3
23 had
agreed
recovery
terms of
pay,
interest is barred
the
and not for a
to
8,
of
damages
provides
O.S.1961
as follows:
as
of an ob
breach
§
ligation
pay
(23
to
22).
money
O.S.1961 §
“Accepting
the whole
of
principal,
such,
to
all claim
as
waives
Ray
In
F. Fischer Co. v. Loeffler-
interest.”
139,
Co., Okl.,
Supply
Green
289 P.2d
court,
below,
quoted
For
the
reasons set out
held:
statute is not
the causes
a bar to either of
right
the
is
to interest
“[Where]
pleaded by
of action
Webster.
on
contract,
based
it becomes
sub-
part
stantive
of
is
the debt itself and
agree
An account
is an
stated
principal
recoverable
though
even
ment, express
implied. The amount or
or
paid
extinguished.”
debt has been
and
upon
so
new
agreed
balance
constitutes a
independent
action,
8,
supersed
Although
and
of
cause
23 O.S.1961
is not
§
specifically
case,
ing and
of
mentioned in
merging
antecedent causes
the Fischer
principles
represented by
particular
applied
of
action
con
law
are
therein
analogous
1
and
to
stituent
items.
Accounts
the case at bar. Since for
Am.Jur.
purposes
Accounting,
16.
is a
it is
An account stated
demurrer
admitted
§
obligation,
right
new
ob
taking the
Webster’s
to the interest
is based
upon
upon contract,
ligation
the interest
account. Heenan
has become “a
Davis,
part of
part
182
substantive
Okl.
Webster that there was an contract, arising reason of custom and BERRY, (dissenting). Justice industry, in the by the terms of which agree I to am unable the majority with agreed Sterling to past interest on ’ opinion. items of the purposes account. For of the- petition, to demurrer Interest, At accordance it is quoted rule, with the rule general from Correll v. Ear that “as stated where the ley, 205 Okl. 237 P.2d the exist contract silent as to interest so that if all, ence such contract is ad it can be recovered at it is incident ant damages herein will for, only legal bear interest at the sued debt interest, per annum, it has rate of loss or until good to make the creditor satisfied, fully paid default. same are breach or by reason of sustained main- cannot be defendant and well were An action to recover aware of principal, such custom payment of the or when tained * * applied original agreement been between them was en- The rule has also *. into, practice tered un- payments upon the said partial where was, be, as derstood and intended reservation accepted been without have ” * * * implied and further term of said contract any right of interest. *4 parties.” between the Interest, the p.At § Am.Jur. thusly: “The the rule is stated converse of greater Should or force different effect in- that where settled general rule is well given be to the in- usage custom and to pay con- the by the terms payable terest is of at applica- terest the of rate than to the 6% the tract, part of integral it becomes brief, provide? ble statutes which so In prin- the debt, payment of principal and the did custom a usage serve to create subsequent cipal prevent not a sum does promise pay principal pay and also to supplied) (Emphasis recovery of interest.” posed ques- interest? If the answer to the A.L.R., “yes”, plaintiff, will be p. by tion is Beginning accepting at “Accept- subject principal, interest, on did not annotations waive the but found affecting right “no”, plaintiff as if the principal seen answer is waived the ance of beginning said annota- interest. I am At the of convinced that the latter interest.” right says “The to answer is annotator that the correct answer. At tions the § Interest, payment of interest after said: recover is. upon whether principal depends sum due payment “Contracts for the of inter- contract, of the is due the terms interest express, need necessarily not be est implied allowed merely it is or whether may implied but from circumstances in an action for by way damages of surrounding making of the con- the terms principal. If interest is may implied tract. contract Such a princi- contract, payment of dealing from the course of or és- recovery, subsequent but pal bar to its is no tablished in a certain where such by the terms of the con- is not due if it known, custom or is well al- tract, payment principal sum is though a of the custom aware party recovery.” a bar charged cannot be with interest. 22, Moreover, frequently has been (23 it held force of statute O.S.1961 By 266) interest at the rate that where a definite contract exists for and 15 O.S.1961 § money date, payment of at fixed owing on the account contro- of was however, breached, in 23 the contract is an im- versy. provided, It is O.S. plied promise pay “accepting exists to interest on that 1961 § due, such, duty claim to sum principal, as waives all inter- whole Therefore, by by implication accepting also arise from est interest.” plaintiff obligation pay- contractual to make principal owing, amount waived owing by stipulated required by times virtue of the ments at that was interest connection, however, In this first cited. statute. statutes that it noted interest should be plaintiff alleged its In pay money contract to usu- breach of industry plaintiff is in the “There damages, as and not as ally allowed custom, engaged a or are us- and defendant by any contract." prevailing generally understood age, supplied) (emphasis pay- which become due and that amounts my way thinking, plaintiff To is not in such as virtue contracts those able position to assert that as to interest plaintiff and there into defend- entered between .240
'was an account stated. No mention was defendant should because deprived made of interest or bill- had wrongfully plaintiff first invoices use ings of money forwarded to defendant. that it was entitled to. receiving After such invoices defendant For reasons I dissent respectfully payments $15,000.00, $5,000.00 made opinion. majority $4,000.00 principal. on It payments plain- these had been made that
tiff billed defendant for interest had
accrued payments on date
payment and interest which accrued on had
unpaid principal. Thereafter plaintiff accepted
tendered and the balance owing on. the indebtedness. WALTON, Error, James R. Plaintiff in p. 706, 28, Stated, At Account it is stated that “an account must re- stated BENNETT, D. William Defendant in Error. *5 ceive the parties; assent of both the minds No. 39998. parties meet, must an account be- Supreme Court of Oklahoma. only by acquiescence comes stated reason of Nov. in its correctness.” See also cases cited ^5, following Stated, Account Vol. Okl.Dig. West’s
n can that defendant not believe I do the last state- acquiesced in
said to háve prior statements he treated the
ment since being 37b(2)(b), correct. .At Stated, Account is said: the statement object
“Failure explained by a account been an
showing there had ac- previous, quiescence in a different involving same transac- statement **
tions, (emphasis supplied)
Assuming that the last statement consti- this would have no account
tuted
bearing upon issue of the basic whether inception agreed at interest and also to
transaction
principal. a number of occasions this On that an account stated has held be-
Court obligation in new
comes Mayes obligation. County See
original Association, Inc.,
Milk v. Hunter Producers Old., ah, P.2d 736 and cited cases.
et long period record shows for a May,
(March, 1958), made and apparently
no demand May, only such demand
made be- delay paying defendant’s full obligation, therefore, felt