ACCOUNT STATED

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ACCOUNT STATED

ACCOUNT STATED. The settlement of an account between the parties, by which a balance is struck in favor of one of them, is called an account stated. 2. An acknowledgment of a single item of debt due from the defendantto the plaintiff is sufficient to support a count on an account stated. 13East, 249; 5 M.& S. 65. 3. It is proposed to consider, 1st, by whom an account may, be stated;2d, the manner of stating the account; 3d, the declaration upon such, anaccount; 4th, the evidence. 4.-1. An account may be stated by a man and his wife of the one part,and a third person; and unless there is an express promise to pay by thehusband, Foster v. Allanson, 2 T. R. 483, the action must be brought againsthusband and wife. Drue v. Thorne, Aleyn, 72. A plaintiff cannot recoveragainst a defendant upon an account stated by him, partly as administratorand partly in his own private capacity. Herrenden v. Palmer, Hob. 88.Persons wanting a legal capacity to make a contract cannot, in general,state an account; as infants, Truman v. Hurst, 1 T. R. 40; and persons noncompos mentis. 5. A plaintiff may recover on an account stated with the defendant,including debts due from the defendant alone, and from the defendant and adeceased partner jointly. Riebards v. Heather, 1 B.& A. 29, and see Peake'sEv. 257. A settlement between partners, and striking a balance, will enablea plaintiff to maintain an action on such stated account for the balance duehim, Ozeas v. Johnson, 4 Dall. 434; S. C. 1 Binn. 191; S. P. Andrews v.Allen, 9 S. & R. 241; and see Lamelere v Caze, 1 W. C.C.R. 435. 6.-2. It is sufficient, although the account be stated of that whichis due to the plaintiff only without making any deduction for any counter-claim for the defendant, Styart v. Rowland, 1 Show. 215. It is not essentialthat there should be cross demands between the parties or that thedefendant's acknowledgment that a certain sum was due from him to theplaintiff, should relate to more than a single debt, or transaction. 6 Maule& Selw. 65; Knowles et al. 13 East, 249. The acknowledgment by the defendantthat a certain sum is due, creates an implied promise to pay the amount.Milward v. Ingraham, 2 Mod. 44; Foster v. Allanson, 2 T. R. 480. 7.-3. A count on an account stated is almost invariably inserted indeclarations in assumpsit for the recovery of a pecuniary demand. See form,1 Chit. Pl. 336. It is advisable, generally, to insert such a count,Milward, v. Ingraham, 2 Mod. 44; Trueman v. Hurst, 1 T. R. 42; unless theaction be against persons who are incapable in law to state an account. Itis not necessary to set forth the subject-matter of the original debt,Milward v. Ingraham, 2 Mod. 44; nor is the sum alleged to be due material.Rolls v. Barnes, 1 Bla. Rep. 65; S. C. 1 Burr. 9. 8.-4. The count upon an account stated, is supported by evidence of anacknowledgment on the part of the defendant of money due to the plaintiff,upon an account between them. But the sum must have been stated between theparties; it is not sufficient that the balance may be deduced frompartnership books. Andrews v. Allen, 9 S.&. R. 241. It is unnecessary toprove the items of which the account consists; it is sufficient to provesome existing antecedent debt or demand between the parties respecting whichan account was stated, 5 Moore, 105; 4 B.& C. 235, 242; 6 D.& R. 306; andthat a balance was struck and agreed upon; Bartlet v. Emery, 1 T. R. 42, n;for the stating of the account is the consideration of the promise. Bull. N.P. 129. An account stated does not alter the original debt; Aleyn, 72; andit seems not to be conclusive against the party admitting the balanceagainst him. 1 T. R. 42. He would probably be allowed to show a gross erroror mistake in the account, if he could adduce clear evidence to that effect.See 1 Esp. R. 159. And see generally tit. Partner's; Chit. Contr. 197;Stark. Ev. 123; 1 Chit. Pl. 343. 9. In courts of equity when a bill for an account has been filed, it isa good defence that the parties have already in writing stated and adjustedthe items of the account, and struck a balance; for then an action lies itlaw, and there is no ground for the interference of a court of equity. 1Atk. 1; 2 Freem. 62; 4 Cranch, 306; 11 Wheat. 237; 9 Ves. 265; 2 Bro. Ch. R.310; 3 Bro. Ch. R. 266; 1 Cox, 435. 10. But if there has been any mistake, omission, fraud, or undueadvantage, by which the account stated is in fact vitiated, and the balanceincorrectly fixed, a court of equity will open it, and allow it to be re-examined; and where there has been gross fraud it will direct the wholeaccount to be opened, and examined de novo. Fonbl. Eq. b. 1, c. 1 Sec. 3,note (f); 1 John. Ch. R. 550. 11. Sometimes the court will allow the account to stand, with liberty tothe plaintiff to surcharge and falsify it; the effect of this is, to leavethe account in full force and vigor, as a stated account, except so far asit can be impugned by the opposing party. 2 Ves. 565; 11 Wheat. 237. SeeFalsification; Surcharge.

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