Emery v. Pease, 20 N. Y. 62. Where, after the death of one partner, an account is stated between defendant and the copartnership, admitting a balance due by him for goods sold in the lifetime of the deceased, the sur viving partner may recover without averring the death of the other partner, and the survivorship: Holmes v. DeCamp, 1 Johns. 34. 20. Corporations. The rule in matters of account is applicable to a private corporate body, engaged in trade, and conducting its affairs by of ficers and agents: Bradley v. Richardson, 2 Blatchf. 343. 21. Erasure. An erasure in a settled account, not shown to have been made before its settlement, is sufficient to avoid it: Prevost v. Gratz, Pet. C. Ct. 364. The presumption is that the alteration was made after execution: Id.; but compare Malarin v. United States, 1 Wall. U. S. 282. 22. "Errors Excepted."-An account in writing, examined and signed, will be deemed a stated account, notwithstanding it contains the phrase, errors excepted:" Branger v. Chevalier, 9 Cal. 353; Troup v. Haight, Hopk. 272. Accounts stated may be opened, and the whole account taken de novo, for gross mistake in some cases; but only when the error affects all the items of the transaction: Branger v. Chevalier, 9 Cal. 353; Hager v. Thomson, 1 Black. 80. And when a party goes into particulars, he is confined to those items improperly charged, and the remainder of the account must stand: Branger v. Chevalier, 9 Cal. 353; Perkins v. Hart, 11 Wheat. 237. 23. Form. The above form is from Graham v. Cammon, 13 How. Pr. 361. A complaint stating that whereas said defendant was justly indebted to plaintiffs in the sum of three thousand dollars, for money paid, laid out, and expended for the use and benefit of said defendant, and at his special instance and request, to wit, at, etc., and on the first day of April, 1857, and in the sum of three thousand dollars, for money found to be due from the defendant to plaintiffs on an account then stated between them; and the said defendant being so indebted to the plaintiffs, afterwards, to wit, on the day and year aforesaid, at the place aforesaid, undertook and faithfully promised the plaintiffs to pay the same, etc., and that said sum is due and unpaid, sufficiently states a cause of action: De Witt v. Porter, 13 Cal. 171. 24. Indebtedness, Allegation of.-A complaint is sufficient which states that defendant was indebted for a certain sum of money, ascertained to be due upon a statement of account, and which defendant promised to pay: De Witt v. Porter, 13 Cal. 172. Where a creditor claims a larger sum to be due him than the debtor admits, but finally yields to the debtor's claim, and takes a promissory note for the lesser amount, he will be bound by the settlement: Powell v. Jones, 44 Barb. 521. 25. Merchants.-An account between merchant and merchant, closed by cessation of mutual dealings, does not therefore become an account stated: Mandeville v. Wilson, 5 Cranch. S. Ct. 15. 26. Nature of Claim.-A complaint, although it refers to an account, should indicate the nature and character of the claim, and the period within which it arose: Farcy v. Lee, 10 Abb. Pr. 143. 27. New Promise.-An account stated alters the nature of the original indebtedness, and has the effect of a new promise: Carey v. P. and C. Petroleum Co., 33 Cal. 694; Holmes v. DeCamp, 1 Johns. 34; Allen v. Stevens, 1 N. Y. Leg. Obs. 359. 28. Opening an Account Stated. The practice of opening accounts tated is not encouraged, and should only be done on clear proof of error or nistake: Wilde v. Jenkins, 4 Paige, 481; Lockwood v. Thorne, 11 N. Y. 170. But fraud is a sufficient ground to open an account stated: 2 Dan. Ch. Pr. 764. The effect of surcharging and falsifying an account, is to leave it an account stated, except so far as it can be impugned: 2 Ves. Sen. 565; 11 Wheat. 237; Sto. Eq. Pl., sec. 801; 1 Story's Eq. Jur., sec. 523; Bruen v. Hone, 2 Barb. 586; Bullock v. Boyd, 2 Edw. 293; Phillips v. Belden, 2 Edw. 1. An account cannot be reopened by one of the parties without proof of the items, and that some one or more of them ought not to have been allowed: Sutphen v. Cushman, 35 Ill. 186. 29. Overcharge.-If the complaint is verified, and the answer does not charge fraud or mistake, evidence of overcharge is not admissible: Phillips v. Belden, 2 Edw. 1. 30. Parties. When an account is settled by the parties themselves, their adjustment is final and conclusive: Hager v. Thomson, 1 Black, 80; even as to the guarantor: Bullock v. Boyd, 2 Edw. 293. It is not at all important hat the account be made out by one party against the other. When a consignor rendered an account to the consignee, it was a stated account from the time the consignor demanded payment of the balance: Toland v. Sprague, 12 Pet. 300. So, where the agent presented the account: 2 Atk. 251; 2 Ves. Sen. 239; Murray v. Toland, 3 Johns. Ch. 569. 31. Presumption.-When an account between parties is stated, with debit and credit sides, and the matter in controversy is stated therein, the presumption of law is that the account is correct, unless it is shown that fraud, omission or mistake exists: Carroll v. Paul, 16 Mo. 226. An account against the State, certified by the auditor, is conclusive on him only as to the correctness of the statements therein contained: State v. Hinkson, 7 Mo. 353. [TITLE.] No. 87. iv. For a General Balance of Account. The plaintiff complains, and alleges: I. That the defendant is indebted to the plaintiff in the sum of... . . . . . dollars, for the balance of an account for groceries sold and delivered by the plaintiff to defendant, and for services performed by the plaintiff for the defendant as an accountant, and for commissions of plaintiff on the sale for defendant of various articles of farm produce, and for moneys paid by plaintiff for defendant's use; the whole furnished, done, and performed at the request of the defendant, between the....day of. 187., and the ....day of........, 187.. That the whole amount and aggregate value of which items is........dollars, no part of which has been paid, except the sum of........ dollars, the balance of account first aforesaid still being unpaid. II. That the defendant has not paid the same. ......9 [Demand of Judgment.] The plaintiff complains, and alleges: I. That the defendant is indebted to the plaintiff in the sum of........dollars on an account for the work, labor, and services in [state the service] performed at the request of the defendant at between the...... ......... ......... day of........, 187., and.... day of.... 187.. II. That he has not paid the same, nor any part thereof. [Demand of Judgment.] 32. Form. This form is sustained by Moffet v. Sackett, 18 N. Y. 522. 33. Services.-A petition (complaint) on an account for services rendered a third person charging an original liability is sufficient: Wing v. Campbell, 15 Mo. 275. 34. Time. In order to be sufficiently definite and certain, the complaint should show the nature and character of the claim, and the period within which it arose: Farcy v. Lee, 10 Abbott's Pr. 143. The plaintiff complains, and alleges: I. That the defendant is indebted to the plaintiff in the sum of........ dollars, on an account for work, labor, and services, as architect in forming and drawing plans, and making estimates for, and superintending the erection of, a row of buildings to be known as Cottage Row, in.................. street, in the City and County of San Francisco, performed at the request of the defendant between the....day of 187., and the....day of........, 187.. II. That the defendant has not paid the same, nor any part thereof. [Demand of Judgment.] No. 90. vii. The Same, by a Broker for Commissions. [TITLE.] The plaintiff complains, and alleges: sum of .... I. That the defendant is indebted to the plaintiff in the dollars, on an account for services as broker, in the purchase [and sale] of [government bonds, state stock, negotiable securities, real estate, personal property, or otherwise], performed at the request of the defendant, at the City and County of San Francisco, be- of .... II. That the defendant has not paid the same, nor any part thereof. [Demand of Judgment.] No. 91. viii. By Carrier, against Consignor, for Freight. [TITLE.] The plaintiff complains, and alleges: I. That the defendant is indebted to the plaintiff to the amount of ..... .. dollars, on an account for work, labor, and services, in carrying in their vessel, the sundry goods and merchandise, from ...... to .. at the request of the defendant, between the ...... 187.. II. That the defendant has not paid the same, nor any part thereof. [Demand of Judgment.] No. 92. ix. The Same, against Consignee. [TITLE.] The plaintiff complains, and alleges: .... I. That the defendant is indebted to the plaintiff to the amount of dollars, on an account for work, labor, and services, in carrying in their vessel, the sundry goods and merchandise, from which were consigned to the defendant and delivered by plaintiff at .... to the defendant and by him accepted, between the .... II. That the defendant has not paid the same, nor any part thereof. [Demand of Judgment.] 35. Interest.—Freight does not bear interest till after demand: Schureman v. Withers, Anth. N. P. 230. The plaintiff complains, and alleges: I. That the defendant is indebted to the plaintiff in the sum of dollars, on an account for services as an editor, in conducting the newspaper of the defendant known as "The .... ," and in writing and preparing articles and paragraphs for the same, performed at the request of the defendant, at the City and County of San Francisco, between the .... day of 187., and the .... day of 187.. II. That the defendant has not paid the same, nor any part thereof. [Demand of Judgment.] 36. Contributor's Services.-The furnishing of articles for publication at the request of the publisher is not of itself a service for which a promise to pay will be implied: See authorities under the next form. No. 94. xi. Allegation for Editing and Compiling a Book. [TITLE.] The plaintiff complains, and alleges: I. That the defendant is indebted to the plaintiff in the sum of .... .... dollars, on an account for work, labor, and services, in compiling and editing a certain book, entitled "The and in preparing the same for the press, and revising and correcting the proofs of the same, performed at the request of the defendant, at the City and County of San Francisco, between the .... day of ....... 187., and the .... day of .... 187.. II. That the defendant has not paid the same, nor any part thereof. [Demand of Judgment.] 37. Author's Services.-A stronger case is required to raise an implied promise on the part of the publisher to pay for the services of the author, than in the case of other services. See, as to the rights of the author without copyright, in Donaldson v. Becket, 17 Parl. Hist. 990; judgment reported in 4 Burr. 2408; Thurlow arg. in Tonson v. Collins, 1 W. Blackst. 306; Yates arg. Id. 333. This case was never decided. Beckford v. Hood, 7 T. R. 620; and see 627; Chappell v. Birdy, 14 Mees. & W. 303; Jeffreys v. Boosey, 30 Eng. L. & E. R. 1; Wheaton v. Peters, 8 Pet. 591; S. C. 11 Curtis' Decis. 223. We cannot, however, see any reason why a stronger case is required to raise an implied promise to pay on the part of publishers, for services rendered them, than for any other class of persons. |