Clark v. Marbourg

— 473 — The opinion of the court was delivered by HoetON, C. J.: It is alleged on the part of plaintiff in error, defendant below, that the only issuable fact in this case under the pleadings regarding the indebtedness sued for up to September 1, 1882, was, had there been an accounting between the parties, an agreement as to the amount due, the payment of such amount, and the execution thereupon of a receipt in full? Upon this theory, it is urged that the defendant in error, plaintiff below, was not entitled to recover upon the account, and that the admission of any evidence tending to show errors or mistakes in the books of account was incompetent and irrelevant. As the defendant’s answer contained a general denial, it was incumbent upon the plaintiff, first, to prove the indebtedness alleged in his petition, and to do this it was proper for him not only to show that the goods and merchandise sued for were ordered and delivered to the defendant, but to explain the charges in the original books of account kept by the Western Hardware Company. The burden of the proof was upon the defendant below to establish the settlement of the account between himself and the hardware company. There was evidence for and against. The court found against the defendant, and we think there was evidence sufficient to sustain the finding. It is urged, however, that the evidence adduced before the trial court-showed conclusively the account between the parties had been stated; that the balance found due upon settlement had been paid, and that a receipt had been given in full. To support this, it is asserted that there was a dispute between the hardware company and defendant as to the amount due up to September 1, 1882; that about the last of August or the first of September, 1882, the company sent Mr. Schlicter, its traveling salesman, to defendant for the purpose of checking up and settling the account; that it was then agreed between the salesman and defendant that the account was incorrect j that defendant told Schlicter he was willing to pay $639.22 as a — 474 — •settlement of the account; that Schlicter left without making a settlement, admitting that the account was incorrect; that defendant then sent to the hardware company $100, and in .a few days thereafter received from the company the following statement: “Atchison, Kas., Sept. 18, 1882. .Messes. E. M. Clark & Co., McPherson, ICas., In account with Western Hardware Go., 516 and 518 Commercial St. Sept. 5 — Mdse.Oct. 5. §11 50 “ 5— “ Nov. 5. 390 17 “ 8— “ “ 8. 18 87 “ 16— “ . “ 16. 13 10 Bal. statement ren’d.§433 64 539 22 §972 86 “FRIEND Clark: We are fearful hard up. I send you two notes, which you can fill up for amount at 60 and 90, if you wish, or take off 20 per cent, and remit if you can. Do this at once. Yours, Marbourg.” That defendant at once returned his note for $539.22, inclosed in the following letter: “McPherson, Kas., Sept. 19, 1882. “ Western Hardware Company, Atchison, Kas. — Gents : According to request, we send note for $539.22, to bal. act. in full Sept. 1st. Please acknowledge the same, and oblige, Yours truly, R. M. Clark & Co.” And that on Sept. 22, 1882, the company returned the following answer thereto: “Messrs. JR. M. Clark & Co., McPherson, Kas. — Gents’: Yours of the 19th received, with note for $539.22, and we place same to your act. in full to Sept. 1, ’82. Please accept our thanks. Yours truly, Western Hdw. Co. Ringo.” The trial court was the judge of the credibility of the witnesses and the weight of the evidence; and with the finding of the court against the defendant, we may assume that the evidence did not show that Schlicter visited defendant to check up and settle the account about the last of August or the first ■of September. The evidence of plaintiff below was that — 475 — Schlicter left the employ of the hardware company August 1, 1882. His conversation with defendant must have been prior to that date, if he had anything to do with examining or settling the account while in the employ of that company. It appears, however, that the defendant ordered and received goods from the company between August 1, 1882, and September 1, 1882. Therefore there was no checking up or settling of the account of that month. This also shows that there was no examination or settlement of the account between Schlicter and defendant up to September 1, 1882. Again, after the erroneous charge against the defendant of $338.12 and the erroneous credits of $933.22 and $51 in favor of defendant were corrected upon the account books of the company, there was no dispute as to the balance of the account up to September 1, 1882. The account subsequent to that •date was admitted in the answer to be correct. All of this tends to show that the defendant did not understand he was •owing only $639.22 the last of August, 1882, and clearly shows that there was no account stated, settled, adjusted or •compromised between the defendant and Schlicter in August, 1882, or subsequently. We do not consider the evidence, that a person who had been an agent of the company on or .about the 25th of September, 1882, informed the defendant “that the account was settled up to September 1, 1882, and that the books showed it,” of any importance, because prior to that time the company had made an assignment, and such person was therefore not at said time the agent or representative of the company. Moreover, the books of account of the company show that this statement was untrue. An account stated is an account which has been examined and accepted by the parties. “In stating an account, two things are necessary: First, that there be a mutual examination of the claims of each other by the parties; and second, that there be a mutual agreement between them as to the correctness of the allowance and dis-allowance of the respective claims and of the balance, as it is .struck upon the final adjustment of the whole account and de — 476 — mands on both sides. The minds of the parties must meet upon the allowance of each item or claim allowed, and upon the disallowance of each item or claim rejected. They must mutually concur upon the final adjustment, and nothing short of this in substance will fix and adjust their respective demands as an account stated; but in proving an account stated, it is not necessary to show an express examination of the respective demands or claims of the parties, or an express agreement to the final adjustment. All this may be implied from circumstances. If the evidence shows, however, that either of the parties did not understand that there had been any final adjustment of their respective demands between them, the courts are not to decree an adjustment between them contrary to their own understanding in the matter.” (Lockwood v. Thorne, 18 N. Y. 285 Williams v. Glenny, 16 id. 389; Reinhardt v. Hines, 51 Miss. 344; 6 Wait’s Actions and Defenses, 424.) In the case before us, there was no mutual examination of the account of the hardware company up to September 1, 1882, by the company and the defendant, or by the plaintiff and defendant, other than that when the erroneous charge and credits were discovered they were corrected, thus leaving the parties to understand the actual amount due from the defendant. In transmitting to the defendant, on September 18, 1882, a statement of his account, the company erroneously made-the balance prior to September 5,1882, $539.22; and on September 22, 1882, the bookkeeper of the company by mistake acknowledged the receipt of defendant’s note of $539.22 in full of the account to September 1, 1882. Subsequently the defendant was informed of the actual condition of his account, and while the letters of the company raise an inference that-there had been an account stated and settled between the parties, the evidence in the case clearly rebuts such inference, and shows that, under the circumstances of the case, there was no account stated between the parties, and that the account sued on was due at the commencement of this action. It cannot. be claimed that the balance rendered September 18,1882, was correct, and if the evidence of plaintiff be accepted, the defendant must have known at the time he transmitted his note-of September 19, 1882, that his account up to September 1,. — 477 — 1882, was largely in excess of $539.22. It is the rule that an account rendered is only prima facie evidence against the party making it, but does not estop him from showing the truth; and an account rendered, therefore, may be impeached or corrected within a reasonable time. Should the balance claimed upon an account be actually paid, the account would still be ■open to correction in the same mauner, and the party who has given a receipt admitting payment has the right always to show by oral evidence that it was given by mistake, and that it was untrue; and he has the right to show how and why he gave the receipt. (Bridge Co. v. Murphy, 13 Kas. 35, 40; Stout v. Hyatt, 13 id. 233, 242, 243; Champion v. Joslyn, 44 N. Y. 653; Spangler v. Springer, 22 Pa. St. 454.) Passing to the other branch of the case, we find that the answer alleged that as to the purchases made subsequent to September 1,1882, by the defendant, of the amount of $476.36, the same had not been paid, because on different days between October 11th and 17th, 1882, the defendant was garnished by various parties having actions pending against the hardware company, and required to answer in the district court of Atchi-son county in respect to such indebtedness; that he answered in all said cases setting forth he was indebted to the company in the sum of $476.36, and that he had not been discharged as such garnishee. The answer was insufficient. It did not state the amount of the claims of any of said parties against the company, or show whether the whole or what portion of the debt had been attached, or that any judgment had been rendered against the defendant therein, or that any order had ever been made upon his answer as garnishee. ( Drake on Attachment, § 705; Crawford v. Clute, 7 Ala. 157.) The defect in the answer was not cured by the reply, as that simply stated that the cases mentioned in the answer had been finally disposed of, and the defendant released from all liability. We cannot gather from either the answer or reply what portion, if any, of the debt was attached. In addition to this, the record shows that the plaintiff has become the sole owner of all the claims in which the attachments were issued against — 478 — tlie hardware company, and also the owner of all the assets of the company; and that the defendant can never be required to pay anything by reason of the garnishee processes having issued. The judgment of the district court will be affirmed. . All the Justices concurring.