Marmon v. Waller

Smith, P. J. — The plaintiffs, who are the executors of the estate of John H. Marmon, deceased, sued the defendant for $1235.60 based on the following writing as an account stated: “This is to certify that J. H. Marmon and myself have this • * * * settled our accounts, and I find I, E. 0. Waller, owe J. H. Marmon $1284.07 on the first day of January, 1887, and J. H. Marmon owes me (E. 0. Waller) $48.47, leaving balance due J. H. Marmon, January 1, 1887, $1235.60. This settlement is correct according to our understanding at this time, but should anything occur we are amicably to settle it.” On the back of this is the indorsement, in the handwriting of J. H. Marmon, “Statement of E. O. Waller.” The answer of the defendant admitted the delivery of the statement sued on, but alleged that the defendant was a business agent of the testator and that at the time of the delivery of said statement the testator was indebted to defendant in several amounts for services previously rendered the latter as his agent which were not included in said statement, etc. Defendant claims that these amounts should be deducted from the amount of the balance shown to be due by the settlement. The undisputed evidence proved that the statement sued on was found after the death of the testator among his evidences of debt. The testator’s death occured on September 28, 1888, more than a year after the settlement shown by the statement sued on was made. The defendant over the objection of the plaintiffs adduced evidence tending to show that he had loaned money for the testator, paid taxes and attended to other matters for the latter prior to the date of the statement. [614] No instructions were asked or given. The court found for the plaintiff the amount sued for with interest, thereon from Nov. 12, 1888. The written statement upon its face shows all the essential elements of an account stated. It is the well settled law that an account stated is an account between debtor and creditor therein, in which a sum of money or a balance is agreed on and an acknowledgement by one in favor of the other of a balance or sum certain to be due and an express or implied promise to pay the same by one to the other. Powell v. Railroad, 65 Mo. 658; Railroad v. Kimmel, 58 Mo. 83; Shepherd v. Bank, 15 Mo. 143; 6 Wait’s Actions and Defenses, 424. Under the facts as we have stated them to be, it may be well presumed that the testator acquiesced in the correctness, of defendant’s statement. Powell v. Railroad, supra. The defendant’s contention is that he had a right to go behind the settlement and show items of indebtedness on the part of the testator to him upon the theory that the same was open to impeachment. The defendant’s contention cannot be upheld. A settlement is conclusive and can only be challenged on the-ground of fraud or mistake. Kroneberger v. Binz, 56 Mo. 121; Kent v. Highleyman, 28 Mo. App. 614; Hawkins v. Long, 74 N. C. 781; Kock v. Bonitz, 4 Daly (N. Y.) 117; Stephen v. Cushman, 35 Ill. 186; Horan v. Long, 11 Tex. 230. And the answer for that purpose-must specially set forth the fraud, errors or mistakes complained of. Kroneberger v. Binz, supra; Moore & Porter v. McCullough, 8 Mo. 401. The answer entirely omits all of these essentials. No such defense is pleaded. The evidence introduced by defendant was manifestly inadmissible under the answer. But this error was in the defendant’s favor. Not. only this but the law is further that an account stated will not be opened if the party was aware when he made the settlement of the facts upon which he bases [615] his claim for relief. Quinlan v. Keiser, 66 Mo. 603; Carmon v. Sanford, 20 Mo. App. 590; 6 Wait’s Actions and Defenses, 428; 1 American & English Encyclopedia of Law, 126, and eases there cited. It cannot be doubted that the defendant knew at the time of the settlement of the existence of the testator’s indebtedness to him. It is impossible that these matters could then have been out of his mind. “He who- did not speak when he should have spoken shall not be heard now, that he should be silent.” Under these circumstances a court of conscience would hesitate long before allowing such claims and especially so where the mouth of the other party to the settlement is dead. Nor do we think the words: ‘ ‘This settlement is correct according to our understanding at this time, but should anything occur we are amicably to settle it” render the account any less a stated account, since as we have seen by the authorities that the other requisites of such paper shows a precise balance due. Kent v. Highleyman, 28 Mo. App. 619. The defendant complains of the action of the court in adjudging that he pay interest on the balance shown to be due the testator by the settlement from April 28, 1888, the date the plaintiffs qualified as executors of the testator’s estate. According to our understanding of the evidence the defendant was liable to pay interest from the date of the settlement. No reason is perceived 'why this should not be so. But, if the action of the court in this respect was error, it was an error in favor of the defendant. The only error urged in the motion for the new trial was that the finding of the court was against the evidence which we do not think was the case. It is our opinion that the judgment was for the right party and should be affirmed, which is ordered accordingly. All concur.