McCormack v. Sawyer

Gantt, P. J. — As will appear from the statement of this case, this is an action for a balance alleged to be? due upon an account-stated. The petition contains all the allegations essential to a good declaration upon am account stated at common law. Upon the trial the plaintiff proved the assignment of the account, by Smith, McCormack & Co., to John R. Christian and an assignment b’y Christian to plaintiff. Plaintiff then proved that a copy of the account, showing the balance sued for, was in 1883 mailed to defendant ; that, in another case in which defendant was a party, he testified he had received the account in due time, and that it was a correct statement of the transactions between defendant and Smith, McCormack & Co. Plaintiff, also, offered evidence that, after the account was mailed to defendant, he saw him a number of times and they had several conversations in reference to the matter and defendant said, “if he was able to pay he would.” Upon this showing, the circuit court sustained a demurrer to the evidence, and, in so doing, committed manifest error. [43] The trial judge is reported in the ‘ ‘ record ’ ’ as holding, “that mailing an account to defendant and he saying that he had received it and that he hoped some day to be able to pay it, falls far short of sustaining such an account.” In Brown v. Kimmel, 67 Mo. 430, Judge Napton, speaking for the court, says: “In a general way an account rendered by a creditor to his debtor, and not objected to within a reasonable time, is regarded as evidence of an account stated, — that is, of an account conceded by both parties to be correct.” On the trial plaintiff testified, that on December 15, 1875, he sent the account recited in the petition through the post-office in a letter requesting defendant to sign a note for the balance due him; that no objection has been made to the account by the defendant until the first day of. the then term of court, about a week before the trial; that plaintiff and defendant lived in the same town and saw each other three or four times a week. This was all the evidence. The trial court sustained a demurrer to the evidence, and this court reversed the case, saying: “Had the action been on an account stated, there is no question that the evidence tended to establish such an issue in favor of plaintiff.” We have never known the authority of this case questioned, and it is daily invoked in the practice. Kent v. Highleyman, 17 Mo. App. 9 ; Powell v. Railroad, 65 Mo. 658. In this case, however, not only was the account delivered to defendant and no objection made thereto, but plaintiff went further and offered direct evidence of a promise to pay it after ib-was rendered. For the error in sustaining the demurrer to the evidence and taking the case from the jury, the judgment is reversed and the cause remanded for á new trial. All the judges of this division concur.