Fleischner, Mayer & Co. v. Kubli

Strahan, C. J. — 1. We have lately considered what constituted a stated account in two cases, and a reference to them seems to be all that is necessary at this time. In Holmes v. Page, 19 Or. 232, we held that an account stated is an account which has been rendered by the creditor and has been assented to by the debtor as correct either expressly or by implication of law, from failure to object, and that the action was not founded upon the items of the account but on the defendant’s consent to the balance stated. And Truman v. Owens, 17 Or. 523, is to the same effect. Under the issues in this case the only question to be tried was whether or not the account between the plaintiffs and defendants became a stated account. This question was concisely stated in appellants’ fourth and fifth instructions refused by the court. If the plaintiffs delivered an account to the defendants either personally or by mail, it would become a stated account, if not objected to within a reasonable time; and in an action on such account, it cannot be opened only for fraud, error or mistake; and the answer in such action must set forth fully the fraud, error or mistake relied upon. {Kronenherger v. Binz, 56 Mo. 121; Terry v. Sickles, 13 Cal. 427; Young v. Hill, 67 N. Y. 162, 23 Am. Rep. 99.) 2. But it was suggested that an account rendered, which had at the bottom thereof the usual initials, “E. & O. E.”— errors and omissions excepted — could not become a stated account; that is, it would remain open and unsettled, so that either party would be at liberty to contest any item thereof, though if these words had been omitted the account would 339 have become a stated account. But this does not seem to be the effect of those words. An account rendered containing them will become a stated account, if not objected to within a reasonable time, with like effect as if they had been omitted. (Branger v. Chevalier, 9 Cal. 353; Young v. Mill, supra.) By the tenth and eleventh instructions, the court charged thát an account, before it can become a stated account, must contain the items. If by this was meant each item of merchandise or cash that constituted the debit and credit sides of the account, we think the court was in error. The evidence showed that accounts had been rendered from time to time by the plaintiffs. These were in accordance with the course of dealing between the parties, and though, all accounts rendered after the first would begin with the balance claimed to be due on the former accounting, still that fact would not prevent their becoming stated accounts. (Dows v. Durfree, 10 Barb. 213.) Instruction four, given by the court, and those on the same subject requested by the plaintiffs and refused, may be considered together. They relate to what is a reasonable time within which a party must object after an account is delivered to him so as to prevent the same becoming a stated account, and whether that was a question of fact for the jury in this particular case or one of law for the court. Generally, what is a reasonable time when the facts are undisputed is a question of law for the courts. Of course, if it were in controversy at what time the account was rendered or at what time objections were made, these would be questions of fact for a jury; but in every case as soon as the date is fixed the question becomes one of law, whether or not such time was reasonable. (Oil Co. v. Van Etten, 107 U. S. 325; Wiggins v. Burkham, 10 Wall. 129; Talcott v. Chew, 27 Fed. Rep. 273; Powell v. Railroad Co. 65 Mo. 658; Lockwood v. Thome, 11 N. Y. 170, 62 Am. Dec. 81.) The first instruction asked by the plaintiffs enunciated a correct principle of law, and it is diffi» cult to understand upon what ground the court refused to give it. The earlier rule in the law, upon the subject of account 340 stated was that it was applicable to merchants only, (22 Cent. Law. Jour. 76); but this is not the rule at present. The needs of modern business have so enlarged it that it may be properly applied to all classes of business men. (Shepard v. Bank of Missouri, 15 Mo. 143; White v. Campbell, 25 Mich. 463.) But within any rule we are able to find in the books the instruction asked was right and should have been given. This transaction was between merchants. The account was rendered nearly six months before any objections were heard on the subject. The defendants made a remittance to be applied on account after its rendition without suggesting any objections to the account. Under these facts, the assent of the defendants to the account as rendered must be presumed, and it was the duty of the court to inform the jury that such was the law. (1 Story Eq. Jur. § 526; Wiggins v. Burkham, supra; Phillips v. Belden, 2 Edw. Ch. 1; Freas v. Truitt, 2 Col. 489.) Having reached the conclusion that the plaintiffs’ theory of this case as presented by the bill of exceptions was correct, we are relieved from any further examination of the defendants’ views as they are diametrically opposed to those of the plaintiffs. The court erred in giving said instructions four, ten and eleven, and in failing to give those asked by the plaintiffs. Let the judgment be reversed and the cause remanded to the court below for a new trial.