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 defendant
to the plaintiff is sufficient to support a count on an account stated. 13
East, 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, an
account; 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 the
husband, Foster v. Allanson, 2 T. R. 483, the action must be brought against
husband and wife. Drue v. Thorne, Aleyn, 72. A plaintiff cannot recover
against a defendant upon an account stated by him, partly as administrator
and 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 non
compos 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 a
deceased partner jointly. Riebards v. Heather, 1 B.& A. 29, and see Peake's
Ev. 257. A settlement between partners, and striking a balance, will enable
a plaintiff to maintain an action on such stated account for the balance due
him, 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 which
is 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 essential
that there should be cross demands between the parties or that the
defendant's acknowledgment that a certain sum was due from him to the
plaintiff, should relate to more than a single debt, or transaction. 6 Maule
& Selw. 65; Knowles et al. 13 East, 249. The acknowledgment by the defendant
that 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 in
declarations 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 the
action be against persons who are incapable in law to state an account. It
is 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 an
acknowledgment 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 the
parties; it is not sufficient that the balance may be deduced from
partnership books. Andrews v. Allen, 9 S.&. R. 241. It is unnecessary to
prove the items of which the account consists; it is sufficient to prove
some existing antecedent debt or demand between the parties respecting which
an account was stated, 5 Moore, 105; 4 B.& C. 235, 242; 6 D.& R. 306; and
that 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; and
it seems not to be conclusive against the party admitting the balance
against him. 1 T. R. 42. He would probably be allowed to show a gross error
or 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 is
a good defence that the parties have already in writing stated and adjusted
the items of the account, and struck a balance; for then an action lies it
law, and there is no ground for the interference of a court of equity. 1
Atk. 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 undue
advantage, by which the account stated is in fact vitiated, and the balance
incorrectly 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 whole
account 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 to
the plaintiff to surcharge and falsify it; the effect of this is, to leave
the account in full force and vigor, as a stated account, except so far as
it can be impugned by the opposing party. 2 Ves. 565; 11 Wheat. 237. See
Falsification; Surcharge.