Ordenstein v. Bones

BARNES, J. The statute (Comp. Laws, 2257) authorizes the issuing of an attachment writ where plaintiff sues to recover “an indebtedness upon a contract, expressed or implied, for the direct payment of money, and that such contract was made or is payable in this territory.” Plaintiff in this case was a merchant doing business in California, and sold goods to defendants, who were living in this territory. It is admitted that such sale of goods was made in California, and that such contract would not support an attachment writ. After the sale was made, however, defendants, when, pressed for payment, and being unable to pay then, were asked to acknowledge the debt, and did so in the following words, in writing: “Prescott, November 16, 1885. “The above balance, fourteen hundred and ninety-three 36-100 dollars, due Ordenstein & Co., is correct. Bones & Spenser.” This was written on accout for goods sold, at the place of business of defendants, in Prescott, Arizona. This writing is made the basis of this suit, and an attachment writ was issued on the ground that this latter writing is a contract made in this territory, and payable here. We have been referred to many cases tending to show that [232] an account stated was a new contract at common law, and that the above writing creates an account stated. At common law, when an amount due on an open account was agreed upon, then the law implied a promise to pay that particular amount. So, when goods were sold and delivered, the law implies a contract to pay the price for them. It is insisted that being an account stated, it became an implied contract to pay, and, made in this territory, brings the action within the attachment laws. While much has been said and written by way of argument which sustains this view, yet a careful analysis of an account stated at common law leads to the conclusion that it amounts to a solemn admission of the fact of indebtedness, which, if proved, makes unnecessary other evidence of the indebtedness, rather than that it is a new contract. It is said in Chace v. Trafford, 116 Mass. 532, 17 Am. Rep. 171: “An account stated is an acknowledgement of the existing condition of liability between the parties. Prom it the law implies a promise to pay whatever balance is thus acknowledged to be due. It thereby becomes a new and unpaid cause of action, so far as that a recovery may be had upon it without setting forth or proving the separate items of liability from which the balance results. ’ ’ This case, therefore, treats it rather as an admission of a fact than as a contract, and the case decides that the statute of limitations begins to run from the date of the last item of the account. The account stated is not a new promise, to bring an account within the statute of limitations. To the same effect is White v. Campbell, 25 Mich. 463. If an account stated is not a new promise, to bring an open account within the statute of limitations, a fortiori, it is not a contract made in this territory, for goods sold out of the territory, to sustain an attachment. This is summary remedy, and a plaintiff must clearly come within its provisions to invoke its powers. Eck v. Hoffman, 55 Cal. 502; Dulton v. Shelton, 3 Cal. 206. By the paper sued on in this case the defendants simply say: “The above balance due is correct.” This is a solemn admission of indebtedness, which could only be questioned for mistake or [233] fraud; but it is simply an admission by defendants that they owe plaintiff a certain amount for the goods sold as stated in the account. The parties intended no more than that. Gooding v. Hingston, 20 Mich. 441. There is a broad distinction between an “admission” and a “contract.” Nothing short of a contract made or payable in this territory gives the right to a writ of attachment. We do not think this paper is more than an admission of indebtedness. It does not change the nature of the old contract, or make a new one in this territory, bnt it dispenses with proof of the account. The judgment of the district court dissolving the attachment is affirmed. PORTER, J., concurs.