This case has, I think, been tried under a misapprehension on the part of the counsel, if not of the court, as to the effect of what is called an account stated. *Page 292 It seems to have been supposed that the questions, whether the account which had been rendered had become a stated or a settled account, or whether if settled, it should be opened, presented a preliminary issue, to be first tried and decided before any evidence could be received showing mistakes or errors in the account. This erroneous supposition appears to have caused the case to be disposed of, without going into any evidence in regard to the accuracy or justice of the charge in the account for deficiency in the weight of the hides.
An account stated or settled, is a mere admission that the account is correct. It is not an estoppel. The account is still open to impeachment for mistakes or errors. Its effect is to establish, prima facie, the accuracy of the items without other proof; and the party seeking to impeach it is bound to show affirmatively the mistake or error alleged. The force of the admission, and the strength of the evidence which will be necessary to overcome it, will depend upon the circumstances of the case. An account stated, which is shown to have been examined by both parties, and expressly assented to or signed by them, would afford stronger evidence of the correctness of its items than if it merely appeared that it had been delivered to the party, or sent by mail, and acquiesced in for a sufficient length of time to entitle it to be considered as an account stated.
So too, an account settled, that is, when the balance it exhibits has been paid or adjusted between the parties, is stronger evidence and requires more proof to overcome it than a mere account stated. But the parties are never precluded from giving evidence to impeach the account, unless the case is brought within the principles of an estoppel in pais, or of an obligatory agreement between the parties; as for instance where, upon a settlement, mutual compromises are made.
When this case was here upon a former occasion, the account current which had been rendered by the defendants *Page 293 to the plaintiffs had not only, so far as appeared, been retained without objection for a period of many months, but the precise balance which it exhibited had been drawn for by the plaintiffs, and paid by the defendants. These facts, uncontradicted, afforded clear evidence, not only of a stated but a settled account; and so the court held. But upon the second trial, the plaintiffs had no doubt a right to contradict or change the state of facts from which this inference was drawn; and this they attempted to do. The court, in its former decision, laid stress upon the fact that the plaintiffs had acquiesced in the account for a period of nine months; and this the judge who delivered the opinion thought sufficient to authorize the inference that they assented to its correctness. Upon the trial under review, the plaintiffs offered to show that, so far from suffering the account to remain unquestioned for the period of nine months, they had, shortly after its receipt, called upon the defendants and insisted upon its injustice. This offer was rejected and the counsel excepted.
There can be no doubt of the competency of this evidence. It tended directly to overthrow one of the main facts upon which the inference of assent to the account was based, viz., the long continued acquiescence. Its exclusion, therefore, was plainly erroneous, unless the judge upon a trial has a right to reject evidence clearly competent, on the ground that if admitted it will not be sufficient to accomplish the object for which it is introduced. There might possibly be a case where the evidence offered, although competent, would nevertheless be of so light and trivial a character that the judge, if it clearly appeared that the party had no other evidence in reserve, would be justified in excluding it, for the purpose of saving the time of the court. This, however, can hardly be considered as such a case. At the time the offer in question was made and overruled, there was nothing to show that the plaintiffs did not intend and were not prepared to follow it with other proof, *Page 294 having the same tendency. Its rejection, therefore, at that stage of the trial was clearly erroneous, and could only be justified here upon the ground that it subsequently appeared that the plaintiffs were not prepared to offer any evidence which would be sufficient to repel the inference. But the bill of exceptions contains nothing to show that the offers made embraced all the evidence which the plaintiffs were ready to produce. After various offers subsequent to that to which I have referred, most if not all of which were rightfully overruled, the judge interposed, stating that he should hold, in accordance with what he assumed to be the previous decision of this court, that drawing for and receiving the balance of an account rendered, without any accompanying claim or notice that the account is incorrect, absolutely concludes the party receiving payment.
This announcement, of course, terminated the trial, as the plaintiffs could not contradict the fact of drawing for and receiving the balance. It is evident that the judge, in this ruling, misapprehended the decision of this court. If the opinion delivered upon the former hearing of the cause is examined, it will be seen that the conclusion was not placed solely upon the ground that the plaintiffs had drawn for and received the balance shown by the account. On the contrary, the judge who delivered the opinion dwells mainly upon the fact of the acquiescence in the account for so long a period, and refers to the draft for the balance mainly as an incidental fact, tending to strengthen and confirm the inference to be drawn from such acquiescence. (1Kern., 173.)
This acquiescence, therefore, if not the main was at least one of the principal facts upon which the decision of this court was based, and evidence tending to contradict it was of course admissible. That which was offered for that purpose, although unobjectionable in its character, was rejected, and how much more the plaintiffs would have offered, but for the rulings of the judge, in no manner appears. *Page 295
The judgment should be reversed, and there should be a new trial, with costs, c.
DENIO and STRONG, Js., dissented; all the other judges concurring,
Judgment reversed and new trial ordered.