Albert Pick & Co. v. Slimmer

Mr. Justice Waterman delivered the opinion of the Court. This was an action of assumpsit upon an alleged account stated made in settlement of services rendered by appellee to appellant. The statement was in writing, and was prepared by the secretary of appellant and given to appellee. It is as follows: “ Albert Pick, Pres. Abe Bloch, Sec’y & Treas. STATEMENT. Chicago, May 1, 1896. M Ed. Slimmer, ( In account with Albert Pick & Co., successors to Pick Bloch & Joel, Importers, Jobbers and Dealers and Complete Outfitters of Bars, Hotels and Restaurants. 199, 201 & 203 Randolph St. Telephone, Main 1885. ' Cr.....................................$3,000. Dr. Drawings. ............. $1,300.00 A. Lipman........____.... 63.75 $1,363.75 By balance due... ...$1,636.25 May 8 th—By cash........... 1896. Payable as follows: May 13................$200.00 ... 300.00 ■ $1,336.25 June 8............... Rec. $200 May 19, ’96. July 8.............. 378.75 Rec. 100 July 6, ’96. Aug. 8................ .. 378.75 $1,336.25 Rec. 200 Aug. 18. ’96. Appellee testified that it was given upon a settlement of accounts, and that the president of appellant promised to pay the balance therefrom appearing to be due to appellee, the payments to be made by installments of the amounts, and at the times indicated upon the statement. In this appellee was corroborated by a Mr. Loser. Appellant denied that the “statement” was anything more than a transcript from the ledger, and insisted that appellee should be charged with certain goods sold by him which had not been paid for, and also with certain goods charged to him upon the order of a third party. Appellant sought to introduce evidence concerning what was said when appellee was hired as to uncollectible accounts for goods he might sell. Upon the trial appellant desired to show the conversation bad with appellee when the statement was made, that appellant had claims against appellee growing out of his contract of employment by it; also, what the terms of the contract under which appellee was hired were. The president of appellant corporation testified that it had claims against appellee for goods sold and delivered, and also what such claims are. That these claims arose subsequent to the making of the statement did not appear; and appellant also wished to introduce evidence showing the terms under which appellee entered its service. Such evidence was properly rejected. ‘ Appellee’s suit ivas upon an account stated, and upon nothing else. If there were no stating of an account, then appellee had no case. What the terms of the hiring of appellee were, and what claims appellant had against him when the alleged statement was made, was immaterial. If there were a statement and if appellee had produced it in evidence, it could be attacked only for fraud or mistake. There was no attempt to show either fraud or mistake in the making of the alleged stated account. An account stated is not conclusive upon the parties; it does afford a prima faoie case. Gruby v. Smith, 13 Ill. App. 43; McKinster v. Hitchcock, 19 Neb. 100; St. Louis Co. v. Bank, 8 Colo. 70; Vandemeer v. Statesir, 39 N. J. Law, 593; Clarke v. Marbourg, 33 Kansas, 471. The court held all the propositions of law submitted by appellant, except the following; That the declarations and statements alleged to have been rendered by various officers of the corporation to the plaintiff in this case would not constitute an account stated as between the plaintiff and the defendant corporation.” In refusing to hold this there was no error; it was not a proposition of law, but of fact. The court found the issues for the plaintiff, and assessed the plaintiff’s damages at the sum of eight hundred and thirty-six dollars and twenty-five cents. The court thus, upon conflicting testimony, found that there was an account stated, as testified by appellee. That when the account was stated the hiring and service of appellee had come to an end is undisputed. The case is, therefore, not like that of Phelps v. Hubbard, 59 Ill. 79, in which there had been only a partial performance. The president and secretary of appellant are presumed to have had authority to make and render the statement in question. The judgment of the Superior Court is affirmed.