Bee v. Tierney

Mr. Justice Gary delivered the opinion of the Court. The court directed the jury to find a verdict for the defendants, the appellees. The appellant is the executrix of her late husband, Joseph Bee, who commenced this suit, but died while the suit was pending. The object of the suit is to recover for goods sold by Joseph Bee in his lifetime, as it is alleged, to the appellees, doing business as M. J. Tierney & Co. The appellant made no effort to prove the actual sale and delivery of the goods, but endeavored to recover upon an account stated. She put in evidence a copy of a page of what we shall assume was the ledger of the appellees, showing a balance to the credit of the deceased, under the name of the Hational Boiler Works, of the amount of the balance sued for. We assume that such copy was competent evidence of xvhat was on it, but it contained no items, and was therefore no evidence of the sale of any specific goods. Indeed the appellant only claims that it was evidence of an account stated. It is said that a mere admission of indebtedness is no evidence of an account stated, unless made to the creditor or some representative of the creditor. 2 Greenleaf on Evidence, Sec. 126. To a stranger, it is not enough. An entry upon the books of a party, while evidence against that party of the truth of what is entered, is not an admission to anybody, and a suit can not be maintained upon simple indebtedness without showing what it is for. On the 7th day of June, 1892, the bookkeeper and cashier of the deceased prepared a statement, of which a copy was put in evidence by the appellant, showing the account of the deceased against the appellees from the 1st day of January, 1892, to May 27, 1892, put it in a stamped envelope addressed to the appellees, and placed it in an open mail box in the offi.ce of the deceased from which the postman ahvays took any mail that might be there. The witness, that bookkeeper, stated that he never knew of any objection by the appellees to that statement. Upon these facts there is some presumption of assent by the appellees to the statement (1 Greenl. Ev., Sec. 40, note 4, and 197, note 4; B. S. Green Co. v. Smith, 52 Ill. App. 158), and of an account stated. 1 Story’s Eq., Sec. 526. How, whether upon circumstances shown by the record, but not necessary to narrate, such presumption could be rebutted, or the credit upon the books of the firm explained away, are questions of fact to be left, under proper instructions, if asked, to the jury. We do not intend to intimate any opinion upon the merits of the case; only to say that there was not such an absence of evidence on the part of the appellant as justified taking the case from the jury. Whether, on the appointment of a receiver for the firm, attention to the business was wholly abandoned to him, does not appear, nor can we infer that it was. An account stated need not be any agreement between the parties that a specific amount is due. An implied acknowledgment to a clerk, who has no authority to waive anything, that all but one item is correct, may be relied upon by the creditor as an account stated. Chisman v. Count, 2 Man. & Gr. 307; 40 E. C. L. 615. This must be upon the principle that the creditor may accept the debtor’s statement, when it is brought to his knowledge, and treat it as an account stated. If so, why may not the statement on the debtor’s books be so accepted ? The judgment is reversed and the cause remanded.