(dissenting):
This is an appeal from an order denying a motion made by the defendant to dismiss the complaint as a matter of law and not permitting the plaintiff an opportunity to prove an account stated with the aid of a certain writing called Exhibit A, together with such other evidence as the plaintiff may have.
There is no doubt that in order to create an account stated, there must be facts from which an agreement can be spelled out that a definite amount is absolutely due as a claim against the defendant, “ so that the demand is essentially the same as if a promissory note had been given for the balance.” (Volkening v. DeGraaf, 81 N. Y. 268.) While in the case at bar the writing relied upon by the plaintiff as showing an account stated, does not upon its face meet the aforesaid requirements, it is susceptible of such a construction, namely, that the defendant admitted the correctness of the charge, asking only for time in which to pay the same. The mere fact that the defendant stated that the work had been done for a client of theirs, does not show as a matter of law that the plaintiff dealt with the defendant as agent, since, as was said in Meyer v. Redmond (141 App. Div. 123; affd., 205 N. Y. 478): “If a person, in fact an agent, undertakes to contract as principal, he becomes such, notwithstanding the other party may suspect that he is an agent, and has means of ascertaining the name of the principal.”
*500If the defendant wished to write the plaintiff that it was not liable but that some other person was liable, there was a much shorter and more direct way of stating it, namely, “ we owe you nothing,” instead of asking time within which to pay it. The fact that the writing also is susceptible of another construction renders the same ambiguous, and hence it may be supplemented by other evidence to show the relations of the parties and that the defendant did in fact agree to the account stated by the plaintiff. As was said by Mr. Justice Mebbell in Hendricks v. Clements (195 App. Div. 144, 149): “ Parol evidence is also admissible in cases where the written contract is upon its face ambiguous or incomplete.” For these reasons the court was right in refusing to dismiss the complaint as a matter of law and permitting the same to go to trial. As was said by Mr. Justice Rumsey in Moss v. Lindblom (39 App. Div. 586): “ The objection that it appears from the statement of the account annexed to the complaint, that the statement was not made between the plaintiff and the defendants, but that another than the defendants appears to have signed it, may be important upon the trial, but it is not material here. Whether the person who signed the statement was authorized to do so on behalf of the defendants is a mere matter of proof to be considered at the trial of the action.”
It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint within twenty days from service of order upon payment of said costs.