ON MOTION NOR REHEARING.
SMITH, P. J.The defendant complains of the paragraph in the opinion to the effect “that defendant after the case was remanded by us to the circuit court for retrial amended its answer to plaintiff’s statement, but we are unable to discover therefrom that it in any way changed the former status of the defense. There was of course no cross-demand or counterclaim thereby set up in the case so that the question of the statute of limitations can not arise in the ease.”
It was held by us when the case was here on the former appeal (71 Mo. App. 299) that “the statement of the account filed by defendant and claimed to be an account stated, was not an account stated for the reason that the evidence did not show that defendant rendered the statement of the account to any officer or agent of plaintiff who was authorized to receive or adjust the same.” Nor do we discover any evidence in the present case tending to prove that any officer or agent of plaintiff, who was authorized to bind it, entered into any understanding or gave defendant any assurance that it would accept the defendant’s account in settlement of its own, when their mutual accounts should thereafter be settled; and, therefore,, there could be no reliance on any agreement or assurance by defend*186ant preventing it from bringing an action on its account within the statutory period. There was nothing on which to build an estoppel by conduct, and so we still think there is no question as to the statute of limitations in the case. The refusal to receive proof of the correctness of the defendant’s account was therefore harmless.
Although on the previous appeal the case was considered on defendant’s theory of an account stated, it may be well questioned whether or not the defense interposed by his statement filed before the justice was more than that of “payment, compromise and settlement.” We still think there was in fact no cross-demand or counterclaim filed in the case.