Volkening v. . Degraaf

Folger, Ch. J. 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 impliéd; 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 he ah assent by the party to be charged, either express or fairly implied. (Stenton v. Jerome, 54 N. Y. 480.) The emphatic words of a count upon an account stated were, in former days, i/nsirrml computasseni, that they, the plaintiff and defendant, accounted together; and the count went on to say that on such accounting the defendant was found in arrear and indebted to the plaintiff in a sum named, and being so found in arrear, he undertook and promised to pay the same to the plaintiff. (2 Chitty’s Pl. 90; 1 id. 358.) Now there is no evidence in this case from which a jury "would be allowed to find or infer that the defendants ever assented, expressly or impliedly, that they were indebted to the plaintiffs in the balance or sum claimed, and undertook", by express or implied promise, that they would pay it. There is no dispute but that the plaintiffs were to take a share of what the defendants got from McKinley, whether it were cash or whether it were notes. The only dispute was whether the plaintiffs were at all events to be paid, either part in money and part in his notes, or in failure to deliver the notes, all in money. As they were to take his notes to the order of the defendants, to be indorsed by them without recourse, there is not room for a serious dispute that, by the agreement of the parties, the plaintiffs were to have or not have their pay, as he was or was not of ability or will to make payment. There is no room iu the testimony for the claim that the defendants were in' any sense the guarantors of McKinley’s ability to pay. The most that can be claimed from the testimony is that the defendants should, as good and vigilant business men, bring the contract between them and McKinley to a close in due time, get from him the money and notes and chattel mortgage that he was to pay and give, and turn over to the plaintiff his part thereof. If McKinley would not, on due endeavor by the. defendants, pay money or give notes, the defendants were not to be liolden to the plaintiff in his stead. Whether the defendants made due endeavor is not a question *272 that need he determined at this time. Whatever was their agreement, and however they have performed or failed to perform it, it is clear that they never accounted together with the plaintiff, and on a balance being found against them, undertook to pay it. It is clear that no account was ever rendered showing a balance, that they ever by express promise or impliedly, agreed to pay. The evidence that is closest to showing a liability on their part, assented to by them, is the payment of moneys so that the balance due from them at some times was less than the amount of the McKinley matter. This does not seem to have been urged upon the trial. Such an inference, therefore, is inconsistent with the clear weight of the evidence. It is fair to suppose that these payments . in advance, as it were, were made in the usual course of dealing of the parties, and were not meant to reduce an indebtedness for the goods delivered for McKinley. The only possible question that can be raised on this part of the case is whether the trial court should not have left the case to the jury. Yet a verdict of a jury for the plaintiff, as for an account stated, would not have been permitted to stand; for it would have been without warrant from the evidence. 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; and Bate v. Graham, (11 N. Y. 237), Pratt v. H. R. R. R. Co. (21 id. 313), and Haddow v. Lundy (59 id. 320) are cited. Those were cases of a recovery by the plaintiffs below and an appeal by defendants to this court. We may not amend the pleadings on appeal so that we may reverse a judgment. Some exceptions were taken upon the admission of evidence. *273 They do not call for a reversal of the judgment, and it should he affirmed. All concur. Judgment affirmed.