Beckwith v. Cleveland Telephone Co.

HENRY, J. The parties to this proceeding in error stand in the relation opposite to that in which they stood below. There, the action was for telephone rentals and for long distance toll charges covering a period of many months. It is conceded here that, the rental claimed was properly-allowed in the verdict and judgment below; but it is contended that the proof of the correctness of the account for long distance tolls is insufficient to sustain the burden of proof raised by the denial interposed by the defehdant below. One contention at first relied upon, is admittedly not presented on this record, namely, that the record discloses no evidence of a schedule of long distance rates as of the times of the accruing of the various items of plaintiff’s cause of action, such as to satisfy the provision of the contract which is the foundation of the account sued on. This leaves simply a question of the weight of the evidence. We have examined the bill of exceptions, and while it does not anywhere appear that the defendant below ever acknowledged, in terms, the correctness of the long distance toll account, still he made no-objection to the items thereof when the same was [266] submitted to him, and from time to time thereafter he put off the collectors with the plain intimation that he would pay if given time. It may not ordinarily be true that an account, the items of which are disputed in an action thereon, can be said to have been acknowledged by mere implication, yet an express and unequivocal acknowledgment is by no means always necessary to afford sufficient foundation for an inference that an acknowledgment is intended. We hold that the circumstances of these acts, as disclosed by the evidence, are such as to warrant the jury in finding, as they did find, that the account sued on was correct, and the judgment is affirmed. Marvin and Winch, JJ., concur.