Moss v. Lindblomm

Russell, J. The effective legal operation of an account stated, springs from the basis of previous dealings between the parties. Without them the stating rests .upon no consideration of legal import. There is in the complaint no allegation of any prior business transaction between the parties, and not even an averment of a promise to pay which was essential even under common-law pleadings. 1 Chit. PL 358; 2 id. 90. Hence an averment that “ An account was stated between the parties,” and a balance found to be due from defendants to plaintiff, is not of itself the assertion of a legal obligation. But even this allegation is impaired by qualification. It is averred that the stating of accounts was made by the account or statement “ hereto annexed.” That appendix shows a speculative transaction, and a balance stated, and it is signed only by “ Royal Trust Co., Assignee of Robert Lindblomm & Co.; Phillip.” The assignee, whether deriving authority by general or particular as [158] signment, cannot bind defendants to-the obligation of personal enforcement, or beyond the distribution of the property passed by the assignment. Hence the stating,of an account by the assignee or its clerk, affects only the dividend to be received1 from the assignee, and does not conclude the defendants, as to their .personal obligations. Volkening v. De Graaf, 81 N. Y. 268; Stenton v. Jerome, 54 id. 484. The substance of this memorandum-was written before the decision of the Appellate Division affirming the order denying the motion to vacate the attachment, and I submit these views with some hesitation on that account. But 'the -.same particularity of statement in an application for an attachment is not required as is essential to testen demurrer, a complaint averring the facts forming the cause of action. Goldmark v. Magnolia Metal Co., 28 App. Div. 264, 271. Otherwise the decision of the Appellate Division would require a different determination than that here announced. Judgment directed for defendants on demurrer to complaint with leave to amend on payment of coste since service of demurrer. Ordered accordingly.