Raub v. Nisbett

Montgomery, J.

This case has once been before the court, and for a statement of the case we refer to our decision on the former hearing, reported in 111 Mich. 38 . On a second trial of the case at the circuit, a verdict was rendered for the estate, the jury finding an account stated. The case is now before us for review of rulings made on this trial.

In December, 1890, the deceased rendered an account of sales and expenditures to claimant. The deceased continued to reside at Big Rapids until October 1, 1891, when he removed tq*West Superior, Wis. He returned to Big Rapids on one or more occasions for a visit before his death, which occurred in March, 1893. It was a matter of dispute whether the claimant objected to the account from the time it was rendered up to the time of the death of Mr. Wilcox. The claimant testified that he did object to the statement to Fred Wilcox, son of deceased, the next day after it was furnished. Fred Wilcox, on the other hand, testified that he rendered the statement’to the claimant, and that no objection was made to it, except that he (claimant) thought some of the shingles were sold ■too low.' On this trial the claimant’s demand rested upon the theory that all the shingles were not accounted for. The claimant’s counsel assign error upon an instruction of • the circuit judge as follows:

“When the account was rendered, it was the duty of the man to examine the account, and if he did not understand it, or raised any objection to it, within a reasonable time he should have stated his reasons to the party who rendered the account. Now, 30 days would be a reason *250 able time. And if he retained the account longer than a reasonable time in which to make the objection, and made no objection to it, then the law implies an assent on his part, and both parties are bound. He impliedly said, by not objecting, ‘The account is correct, and I acquiesce in. the statement. ’ ”

It- is contended that the court instructed the jury that 30 days was a reasonable time, as matter of law, and it is contended that what would be a reasonable time to object to the account was a question for the jury. This instruction may not have been strictly accurate. We do not find it necessary to hold that the retention of an account rendered for 30 days without complaint will in all cases, as matter of law, constitute such account an account stated. But in this case, if the testimony of claimant was accepted, he objected to the account promptly. If it was to be rejected, there was no evidence of any objection during the lifetime of Mr. Wilcox, a period of nearly three years, nearly one year of which time both parties were residents of the same town. This certainly affords a very strong presumption of the accuracy of the account, and, when taken in connection with the fact that no distinct error in the account was shown, should be held controlling. 1 Am. & Eng. Enc. Law (2d Ed.), p. 451, note 5, p. 452, note 1.

A book of account of deceased was admitted in evidence. It is contended that the proper foundation was not laid. It is in evidence, however, that the statement above referred to was taken from the book; that, at the time the statement was rendered, the claimant sat down, with book and statement, and looked the book through. This testimony rendered the book competent as in the nature of an admission.

Examination of the record convinces us that no error was committed to the prejudice of claimant.

The judgment will be affirmed.

The other Justices concurred.