Ripley v. Sage Land & Improvement Co.

The following opinion was filed January 5, 1909: Siebecker, J. The defendant contends that the court erred in opening the account and awarding plaintiff a recovery for a balance on a restatement of it, because the undisputed facts show that the parties settled the account between [307] them and that the plaintiff accepted payment from defendant of the amount then found due him. It is urged that it is without dispute that the defendant.on November 12, 1902, forwarded to plaintiff a statement of the' account of the business affairs between them arising out of the land deals, and accompanied it with the sum of $114.97 as payment of the balance due plaintiff. Plaintiff acknowledged receipt of the statement and money, retained the money, and made no objection to the correctness of the account thus rendered. There is no controversy between the parties respecting the transaction up to this point. Without explanation and modification of this situation the acceptance of the amount sent by defendant as payment of the balance due plaintiff made the account a stated one and operated as a settlement and payment of the claim embraced in the account. The plaintiff, however, alleges that there was no such settlement and payment of his claim because the defendant erroneously charged an excessive amount for interest on the sums advanced by it in payment of the lands purchased and thereby erroneously reduced the amount due him as- his share-of the net profits on the purchase and sale of the lands. He admits that within a short time after receipt of the account and money as payment of the balance due him on the accoiint he was informed of this state of the account so rendered by the defendant. It appears that not until August, 1905, a period of two years and nine months, did he give defendant any notice of this alleged overcharge in the account rendered by defendant, or make any claim for any sum as. due him above the $114.97 so accepted by him. He testifies that he examined the account critically shortly after he received it and the money and after he had acknowledged receipt thereof, that he did not offer to return the money nor did he then inform the defendant that he repudiated the account as incorrect, but that after such examination he took legal.advice regarding the right of the defendant under the contract to compute the interest as [308] it did, and some time thereafter was informed that the defendant had illegally compounded the interest, and that he thereupon instructed his counsel to take the necessary steps to have the account corrected and to demand payment of the amount still due him. No steps were, however, taken by him or his counsel for a period of nearly three years. The duty to take the necessary steps to enforce collection of any additional sum due him rested on him, and he cannot be relieved by placing it in the control of De Alton S. Thomas, his attorney. He must be held to have sanctioned inaction by his attorney, for under the circumstances the attorney’s delinquency cannot explain or justify plaintiff’s silence for so long a time. Under this state of the facts the question is whether plaintiff’s conduct in the matter amounts to a settlement and acceptance of the account and precludes him from opening it at this late day. It is urged by plaintiff that he in fact never assented to a settlement and payment of the account, and hence his conduct in the matter does not warrant the conclusion that the account became stated and paid. This contention omits consideration of the account as rendered, his acceptance of the amount tendered as payment of the whole amount due him, his long silence respecting the matter, and his failure to bring it to defendant’s notice. Under the circumstances such acquiescence furnishes a good basis for the inference that he assented to the settlement defendant proposed by the account rendered. Such assent is as irrevocable as if he had expressly given it. Plaintiff was in duty bound to give defendant notice of his disapproval of the account within a reasonable time. It devolved on him to exercise reasonable diligence, to give proper attention to the transaction, and repudiate the account if he desired to avoid the effect of the settlement and q>ayment of the account proposed by defendant. He did not act with reasonable diligence and vigilance to repudiate it, and his conduct permits of but one reasonable inference, namely, that he [309] assented to tbe settlement and accepted tbe money tendered by defendant as payment of tbe balance due bim. Tbe effect of plaintiff’s conduct is declared by tbe court in tbe case of Rose v. Bradley, 91 Wis. 619, 65 N. W. 509, where tbe force of tbe silence of a party after having received a statement of tbe account against bim from another was considered. It is there said: “If such other keeps tbe account and fails to object within a reasonable time, tbe facts raise a presumption or inference of acquiescence. That is all. Such presumption or inference is more or less strong according to circumstances. Tbe neglect to return or object may be for such a length of time as to render such presumption conclusive on tbe question of acquiescence, so as to make an account stated.” Tbe following cases are illustrative of this principle, which we find controls this ease against plaintiff’s contention: Pabst B. Co. v. Milwaukee, 126 Wis. 110, 105 N. W. 563; Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246; Voss v. N. W. Nat. L. Ins. Co. 137 Wis. 492, 118 N. W. 212. Since, then, tbe account was settled and paid, no ground is shown for opening it and allowing plaintiff to charge defendant any additional sum as due bim. No fraud or mistake is claimed. Under tbe circumstances principle and public policy demand that when tbe account was settled and adjusted it became conclusive on tbe parties. Martin v. Beckwith, 4 Wis. 219; Klauber v. Wright, 52 Wis. 303, 8 N. W. 893; Continental Nat. Bank v. McGeoch, 92 Wis. 286, 66 N. W. 606. We are led to tbe conclusion that tbe court erroneously opened a stated account, and that tbe complaint should have been dismissed. By the Gouri. — Judgment reversed, and tbe cause remanded with directions to award judgment dismissing tbe complaint.