I dissent. The transactions between the plaintiff and the defendant do not, in my opinion, disclose any of the elements of an estoppel; nor do I think that the receipt and retention by a laborer, without objection, of a statement of account rendered him by his employer, is governed by different rules from those which control a similar transaction between other parties. No reason is urged in support of such a proposition, other than that of estoppel, and no authority is cited to sustain it. In McClain v. Schofield, 74 Hun, 437, 26 N. Y. Supp. 700, the plaintiffs were commission merchants, and sold goods manufactured by the defendants, for which they had received a commission of three per cent. Subsequently the plaintiffs were informed by the defendant that for the future they would pay a commission of only two per cent, and assented thereto. The statements thereafter rendered by the defendants were made upon this basis, and the plaintiffs, without objection thereto, accepted payment of the amount thus shown. The basis of the rule which renders such transactions between other parties the equivalent of an account stated is that the acceptance, without objecting thereto within a reasonable time, is to be regarded as an implied admission that it is correct, but, like all admissions upon which no action has been had by the other party, is subject to explanation, and, if shown to have been made erroneously or under a mistake, is not binding upon the party making it. The application of the rule itself was originally limited to transactions between merchants, and, in some jurisdictions, is still so limited (Anding v. Levy, 57 Miss. 51,34 Am. Rep. 435), and was afterward extended to statements made to their customers by all dealers in merchandise. It is only within modern days that it has been extended *370to persons in other relations. In Lockwood v. Thorne, 18 N. Y. 285, one of the leading cases in this country on this subject, it was said: “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. But the parties are never precluded frofn 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.” And in Brown v. Kimmel, 67 Mo. 430, it was said: “It will readily be perceived, on an examination of the numerous cases reported on this subject, that they have been decided on the peculiar circumstances attending each case, and most generally in proceedings in equity. In no case has such implied admission been held to be an estoppel, but simply a prima facie case throwing the burden of contradiction or explanation on the adverse party.” (See, also, Wiggins v. Burkham, 10 Wall. 129; Kusterer Brewing Co. v. Friar, 99 Mich.. 190; Hutchinson v. Market Bank, 48 Barb. 302.)
Being only evidence from which an agreement may be inferred, it can be treated as the equivalent of an agreement only when the transaction is of such a nature as to authorize such inference, and, since as evidence its effect is always varied by the circumstances under which the statement was given and received, and by the character of the transaction to which it refers, as well as the parties between whom it was made, it cannot be said as matter of law that the mere receipt and retention by the plaintiff of the statements rendered him by the defendant bound him by their contents.
*371The evidence before the jury concerning the terms of the original hiring of the plaintiff was conflicting, but, if the jury were satisfied from this evidence that the defendant had agreed to pay the plaintiff the wages, as claimed by him, that agreement would be the basis of his right of recovery, and he wo.uld not be “ bound” by any subsequent statements of the defendant as to the amount in which it claimed to be indebted to him therefor after such wages were earned. His failure to make objection thereto would not preclude him from explaining the circumstances under which he received the statements and leaving to the jury to determine whether they were such as to constitute an express admission of their correctness.
Of course, if the circumstances connected with the receipt of the statements are such as to create an estoppel in pais in behalf of the employer, a different rule would prevail, not by reason, however, of the implied admission of the correctness of the statement, but by reason of the fact that the employer had acted thereon, and would be injured if the admission could be repudiated. The burden of showing this fact, however, would rest upon the employer, and must be established affirmatively, and not left to conjecture. In Janin v. London etc. Bank, 92 Cal. 14, 27 Am. St. Rep. 82, it was said in reference thereto: “The burden of proof to show that the bank sustained damage or injury by the negligence (that is, the failure to make objection) of plaintiff was upon the defendant, and this it was required to show by evidence having some reasonable tendency to establish such fact.” There is nothing in the present record tending to show that the defendant acted, or failed to act, in respect to any matter, by reason of the omission of the plaintiff to object to the correctness of the statements, and there is nothing more than conjecture that, if he had objected thereto, the defendant would have sought to terminate the employment; and there is certainly no foundation for such a presumption.
An order overruling a demurrer to a complaint, on *372the ground of ambiguity, does not constitute reversible error, if, after such order, the cause is tried upon its merits, and it does not appear that the defendant was prevented from making whatever defense he had to the cause of action shown by the plaintiff's evidence. (Code Civ. Proc., sec. 475.)