Leisenring v. United States

GREEN, Judge. In the argument for new trial it is contended that this case is identical with the case of Bonwit Teller & Co. v. United States, 283 U. S. 258, 51 S. Ct. 395, 75 L. Ed. 1018, in which judgment was rendered for the plaintiff. We have undertaken to show both in the case of David Daube v. United States, 59 F.(2d) 842, 1 F. Supp, 771, 75 Ct. Cl. 633, affirmed 289 U. S. 367, 53 S. Ct. 597, 599, 77 L. Ed. 1261, and in the opinion originally filed in the ease at bar that the decision in the Bonwit Teller Case was based upon the assumption not disputed in the briefs of counsel that there was in fact an account stated in favor of the plaintiff. But aside from this, there is an important difference between the case now before the court and the Bonwit Teller Case, supra. This difference is found in finding 6 which recites: “6. There is nothing in the evidence that shows or tends to show that there was at any time any agreement or promise, express or implied, on the part of the defendant through its officials to refund or pay to the taxpayer the sum for which suit is brought, or any other sum beyond the amount to be refunded as specified in the certificate of overassessment for the year 1919, which showed a credit of a portion of the overassessment against the taxes of 1917 as set forth above.” This statement is criticized as being a negative finding, but negative findings are often made by this court as a matter of necessity and are absolutely required where there is [994] any question as to whether or not there is evidence on certain points which are vital to the ease. There is not and cannot be any objection to this finding on the ground that it does not correctly show the condition of the evidence. There was no such finding made in the Bonwit Teller Case, supra. This finding is determinative of the case, but in order that all that appeared from the evidence may be shown by the findings we have concluded to add thereto the words, “nor was there anything in the evidence that tended to show an admission on the part of the taxpayer of the correctness of the balance struck by the account.” In the original opinion herein, we referred to the ease of David Daube v. United States, supra, and the opinion of the Supreme Court affirming the decision therein. In the Daube Case, supra, the majority opinion referred to the rule that in order to constitute an account stated the parties must agree upon the balance struck and there must be a promise, express or implied, for the payment of the balance, and further that “the parties cannot state an account by agreeing to part of the items, and leaving the others open for future adjustment or litigation.” This principle has been supported by a uniform line of authorities for more than a hundred years and no court has ever deviated therefrom when the question came before it for determination. In 1 C. J., § 263, p. 685, more than fifty eases are cited in note 34 as following the rule. Also in 1 C. J., § 265, p. 686, it is said that: “In order to create an account stated, the debtor must not only assent to the correctness of the account but also admit his liability therefor.” Citing numerous eases among which is Columbia River Packing Co. v. Tallant (C. C.) 133 F. 990, wherein it is said that an action upon an account stated is an action upon the promise to pay. Hundreds of eases could be cited where the question was whether the minds of the parties met upon the correctness of the account stated. It is also to be noted that, to put it as stated in the original opinion in the ease at bar, in the ease of David Daube, supra, the Supreme Court said that the evidence must be such that it “sustains the inference of an agreement that the tax shall be repaid.” Finding 6 negatives such a conclusion. Nevertheless, it seems to be contended now that in the ease of Toland v. Sprague, 12 Pet. 300, 335, 9 L. Ed. 1093, cited by the Supreme Court in the Daube Case, it was held that the nature of an account stated is not changed by there being a controversy as to the balance due thereon. We are clearly of the opinion that such was not the holding with reference to the account itself and that so far from sustaining the contention made on behalf of defendant the case by implication sustains the rule we have above stated. The action in "the case last cited was upon an account for merchandise as to which the court said in the opinion, “neither party asks to open the account, and both admit the same balance.” The defendant in the ease refused to pay this, balance by reason of a claim set up by him on matters having no connection with the account. The account and the balance having been agreed to, the court properly held that this constituted an account stated. We think it is obvious that if the rule contended for was adopted the consequences would overturn a number of other well-settled principles of commercial law. Under such a rule a creditor could not send out an account containing items of debit and credit without fixing his liability for the items of credit contained in the account and giving the debtor an extension of the period of limitations to sue thereon. So also if no assent is necessary, the mere sending out of a statement of an account on the part of the creditor would bind the debtor and extend the time of limitations for bringing suit thereon. We see no reason for further argument, and the motion for leave to argue the motion for new trial orally is therefore overruled. The motion for new trial is also overruled.