Wimberley Grocer Co. v. Brandon Craig & Co.

Hart, J., (after stating the facts). The circuit-court found that the merchandise sued for was sold upon the credit of Leving Fraser and charged to him, and that plaintiff was not entitled to recover from the defendant. Counsel for the plaintiff insists that the court erred in so holding. We have not set out the testimony of the plaintiff on this point in detail, for we are not concerned with the weight of the evidence. It is sufficient, upon appeal to affirm the judgment of a circuit court sitting as a jury, for us to find that there is some sub-tantial evidence in the record to support the judgment. The testimony of the manager of the defendant ■ ánd of Fraser is sufficient for that purpose. It appears from his testimony that he agreed to saw up some lumber for Leving Fraser, with which to build a potato-house, in consideration that Fraser would furnish him groceries to the amount of $375 to feed his men while they were sawing the lumber. It appears from the testimony of Fraser that he made arrangements for the plaintiff to ship to the defendant groceries to the amount of $375 and charge the same to his own account. This evidence is-sufficient to support the judgment of the circuit court on this point. It is next insisted by counsel for the plaintiff that the circuit court erred in not finding as a matter of law that the account as between the parties became a stated account, and could not be questioned except for fraud or a mistake. It is true that the plaintiff testified that it sent several statements of the account to the defendant which were not answered by it. On the other hand, according to the evidence for the defendant, no such statements were received by it. It never acknowledged in any manner that it was indebted to the plaintiff in any amount. It is shown that the defendant never did any business with the plaintiff in person or received any goods from it except the groceries involved in this suit. According to the evidence for the defendant, as soon as the plaintiff sent it the statement of the account, it called up Fraser, and Flraser promised to see the .plaintiff about it. He reported to the defendant that he had seen the plaintiff and made it all right, and the defendant thereafter paid no further attention to the matter. Under these circumstances it cannot be said that an account stated existed between the parties. The court was justified in finding that there was no consent, either express or implied, to the corrrectness of the account, or that the defendant did, in any manner, admit that it owed the plaintiff any amount whatever. Citizens’ B. & T. Co. v. Hinkle, 126 Ark, 266. It follows that the judgment must be affirmed.