Goodrich v. Coffin

Account Stated. Evidence. Admissions. B. S., c. 41, § 21. Where parties agree upon a settlement of accounts by an amount stated, having at the time a particular sum in mind and alluding to the sum without naming it, it is competent to prove by other evidence (here by the admission of defendant) what the amount of the agreed indebtedness was. When a defendant sets up in an action on an account stated that, in the accounts computed, there were items of lumber -sold illegally because the lumber had not been officially surveyed, the burden is on him to prove the facts.

On MOTION AND ISNCKPTIONS. This was an action of assumpsit to recover for lumber and sawing the same. The declaration was in a single count upon account stated. The account annexed to the plaintiff’s writ was as follows : E. Gr. Coffin to John D. Baker, Dr. January 20, 1886, to balance due on lumber and sawing lumber as agreed on settlement between the parties, $110.00 Interest, 13.20 $123.20 Plea, general issue. When the cause came on for trial, the plaintiff introduced no evidence of an accounting, or a statement of their accounts, had between the defendant and the plaintiff’s intestate in the lifetime of plaintiff’s estate, or of an agreement between them that the sum mentioned in the account annexed, or any other specific sum, -was due from defendant to plaintiff’s intestate, except as appears in the evidence reported and made part of the exceptions ; nor was there any evidence that the lumber mentioned in the account annexed to plaintiff’s writ was ever surveyed by a sworn surveyor, as required by R. S., c. 41, § 21. After the plaintiff’s evidence was all out, the defendant’s counsel moved for a nonsuit; whereupon the plaintiff asked leave to amend the declaration in the writ by striking out the item thirteen dollars and twenty cents in the account annexed, and to amend the declaration so as to read one hundred and ten dollars instead of one hundred and twenty-throe dollars and twenty cents; which amendment -was allowed by the court against the defendant’s objections. The defendant then moved for a nonsuit on the ground that there was a variance between the declaration and the proof, and also upon the ground that there was no evidence of a survey of the lumber by a sworn surveyor, and that thus the claim sued for was founded on an illegal transaction; which motion was overruled by the court. The court instructed the jury, among other things, as follows : "If you are not satisfied that the proof in this case which has been offered sustains this declaration and the amount as claimed, you are not authorized to return a verdict for the plaintiff. In other words, you must be satisfied so far as the amount is concerned that, from all the evidence introduced here, and it all comes from the plaintiff’s side, this defendant owed the deceased in his lifetime $110.00 for lumber and for sawing. You have heard the testimony of the administrator as to what was said to him by the defendant, and you have also heard the testimony of one or two other witnesses as to what they heard Mr. Coffin say in regard to the amount that was due. If, from this evidence, you are satisfied that the defendant did owe that amount, $110.00, then you would be authorized to return a verdict for that amount, provided no provision of statute is in the way.” To these rulings and instructions the defendant excepted. The jury returned a verdict in favor of the plaintiff for $116.33. In one of the conversations between the plaintiff' and defendant, the latter stated that the bill was all right, that John, meaning the plaintiff’s intestate, had "sent him a bill, and that he,” Coffin, "had paid him something on itand when the plaintiff told him it was twenty-five dollars and that the same had been credited to him, he said it ivas all right, and repeatedly stated that he would pay the bill. The defendant, also, admitted to one Dinsmore, that there was due the Baker estate, one hundred and ten dollars for the lumber. In the presence of one Burke, the defendant said to the plaintiff, "You haven’t received that bill yet.” The plaintiff said "No.” "Well,” he said, "it should have been paid long ago. I was expecting some money, but I didn’t receive it. I will fix it shortly.” There was evidence to show that the lumber was used in building a stable for the defendant, and that John D. Baker, delivered part of the lumber. The defendant offered no testimony. An account stated is an agreement between persons who have bad previous transactions, fixing the amount due in respect of such transactions, and promising payment. See note to Lockwood v. Thorne, 62 Am. Dec. 85 ; Abbott’s Tr. Ev. 458. The admission must be of some certain and fixed amount due. 1 Chit. PI. 359 ; 2 Greenl. Ev. § 128 ; Seagoe v. Dean, 3 C. & P. 170. Not sufficient without naming or referring to a sum certain. Bernasconiv. Anderson, 1 Mood. &Malk. 183: note to Wiggins v. Liurkham, 10 Wall. 129 ; Lawyer’s Coop. Ed. Yol. 19, 885. Admission must be to plaintiff or his agent, Chit. PI. and Greenl. Ev. supra; Hughes v. Thorpe, 5 M. & W. 667 ; Bates v. Townley, 2 Exch. 152; Hoffar v. Dement, 5 Gill, 132 (S. C. 46 Am. Dec. 628) ; Breckon v. Smith, 1 A. & E. 488; Thurmond v. Sanders, 21 Ark. 255; note to Lockv;ood v. Thorne, supra-, Anding v. Levy, 57 Miss. 61 (S. G. 34 Am. Rep. 435). Only exception to the rule, is in favor of merchants. Cases, supra. Plaintiff testifies to no admission by defendant of any fixed and certain balance. Dinsmore not agent of plaintiff, or his intestate. Burke testifies to no specific sum. There is no evidence of a survey of the lumber. Without it, plaintiff has no basis on which to rest his account stated. Richmond v. Boss, 77 Maine, 590. A promise to pay for a past consideration for which there is no legal liability, does not make a binding contract. Llooker v. Knab, 26 Wis. 511; Smith v. Ware, 13 Johns. 257 ; Western Bank v. Mills, 7 Cush. 539 ; Ohenery v. Barker, 12 Gray, 345.