dissenting:
Isaac T. Wilson and W. R. Camp entered into a written contract under seal, by which Wilson agreed to' cut, haul, and deliver to Camp on the cars of certain railroads, from the timbered lands belonging to the Gay Manufacturing Company, twenty million feet of merchantable saw-mill logs; it being agreed that an average of about forty thousand feet per day, or an aggregate of about ten million feet per annum, was to be delivered within the period of two years.
W. R. Camp agreed to furnish Wilson with a. locomotive and sufficient 4i*on rails, switch stands and fixtures, fish plates, and spikes, and all necessary cars to carry the logs, and to pay two dollars and forty-five cents per thousand feet for all logs delivered. This suit was brought by Wilson to recover damages for the alleged failure by Camp to perform his part of the contract, whereby the plaintiff was, without default on his part, prevented from hauling all the logs, and thereby deprived of a large part of his legitimate profits.
The suit resulted in a verdict for $1,500 in favor of the plaintiff Wilson, which we are asked to set aside.
*273The petition for a writ of error states that “ the questions to be passed upon by this court are: First, did the lower court err in refusing to give the instructions asked for; and that- being* disposed of in the negative, then did the court err in refusing to set aside the verdict of the jury, because same was, and is, contrary to the evidence, and is excessive?”
The instructions asked for by the defendant and refused, together with those given in lieu thereof, designated as FTcs. 7 and 13, will be found in the opinion of the court, and need not appear here.
The question presented by the refusal of the court to give the first instruction is the liability of the defendant Camp to furnish Wilson with the standing timber to be cut and hauled by him. It is true there is no express covenant in the written contract on the part of W. FT. Camp to furnish to Wilson the timber to be cut, but the whole spirit of the writing imports an implied covenant that he is to provide lYilson with the standing timber of the Gay klanufaeturing Company, in order that the contract between them might be carried out. That Wilson did not own the timber, or have any control over it,' appears to have been well known to Camp. Wilson was not selling-timber to Camp, but was an employee, performing the labor of cutting and hauling timber, at an agreed price per thousand feet for such work; and his agreement to cut, haul, and deliver the logs for and to Camp, and the agreement of Camp to pay him therefor import an implied covenant on the part of Camp to furnish the agreed quantities of timber for that purpose. White v. Toncray, 5 Gratt. 188. Further, that Camp was to provide the timber to be cut and hauled is the practical construction put upon the contract as shown by the dealings of the parties, and by their evidence, not objected to. There was no dealing, in respect to the matter, between Wilson and the Gay Company,' while, on the other hand, it appears that its dealing was with Camp, who admits that he “ was to furnish the timber *274the Gay Company had, and that "Wilson so understood it.” A proper construction of the contract justified the court’s rejection of the first instruction asked for by the defendant, and its substitution of that designated as Ho. 7, given in lieu thereof.
As contemplated by the contract, the parties settled each month the account for the logs actually cut and hauled the preceding month, Camp paying the amount shown to be due on that account, and "Wilson giving a receipt therefor. The contention of the plaintiff in error is that these monthly settlements were mutual accounts stated between the parties, and that the plaintiff cannot now go behind them to assert his claim to damages for the breach of the contract by Camp. This proposition is embodied in the second instruction asked for by the defendant, the rejection of which constitutes the second assignment of error.
An account stated is an agreement between persons who1 have had previous transactions, fixing the amount due in respect of such transactions, with a promise either express or implied on the part of the debtor to pay the balance ascertained to be due. The minds of the parties must meet as in making other agreements, and they must both assent to the account, and the balance, as correct. An account stated is not, however, absolutely conclusive on the parties. It establishes prima facie the accuracy and correctness of the items, and unless this presumption is overcome by proof of fraud, mistake, or error, it becomes conclusive; but the converse of this proposition, namely, that an account stated may be impeached by fraud, mistake, or error, is very well .settled. See on this subject the valuable note, and authorities there cited, by Mr. Freeman to Lockwood v. Thorne (N. Y.), 62 Am. Dec., 85; also, Perkins v. Hart, 11 Wheat 237. In the latter ease, it is said, in speaking of the conclusiveness of a settled account, “ If it be confined to particular items of account, it concludes nothing in relation to other items not stated in it.”
In the case at bar the contract provided that all logs cut *275should be measured by “ Doyles log rule,” and counted as by board measure, and paid for at the price named, between the 10th and 15th of each succeeding month, and in no case later than the loth of the month. In pursuance of .this understanding, an account showing the actual number of feet hauled, and the amount due therefor, was made out by a book-keeper employed by Camp, and it is not disputed or denied that these monthly accounts were paid by Camp, and correctly stated the amount due for logs actually hauled. These accounts, however, were confined to the one item of amount due under the contract for logs then cut and hauled, they made no reference to any other subject, and it is clear from the evidence that the parties never understood, at the time, that they were settling any matter between them but the amount due for logs actually cut and hauled. The settlements for logs hauled were not necessarily connected with or dependent upon an ascertainment of the damages now claimed. Indeed, it is difficult to see how damages for the failure of Camp to perform his contract, thereby causing Wilson delay and loss of time in accomplishing his work, could have been ascertained and agreed upon, and made-the subject of a monthly settlement; for the delay caused by Camp one month might have been made up by his extra diligence in furnishing facilities the next.
That Camp did not himself regard the last monthly payment for logs hauled, as a final adjustment "of all matters between the parties, is shown by the fact that, several months afterwards, he found on his books a balance against Wilson, antedating the last settlement for logs hauled, amounting to $60 or $70, and presented the claim to Wilson, and demanded its payment. Yrilson replied: “ I am not going to pay it; you owe me a lot more than that.”
The evidence satisfactorily establishes that only a settlement for logs hauled was contemplated by the monthly accounts adverted to, that the parties never intended those settlements as *276a final adjustment of all matters between them, and never designed that either should be thereby estopped from asserting any other demand.
Camp and Wilson, not having understood that the monthly settlements for logs hauled were final adjustments of all matters between them, the court cannot disregard the understanding of the parties themselves, and decree an adjustment between them contrary to their own understanding in the matter,
There is no conflict between this view and the principle laid down by this court in the case of American Mang. Co. v. Virginia Mang. Co., 91 Va. 272. In that case the parties were operating under a contract for mining and shipping ore, and were to be paid every month for the number of tons of ore taken out and delivered the preceding month. It was not clear from the contract whether the ore was to be weighed as it came wet from the washer, and a royalty of $2 per ton paid on that weight, or whether it was to be weighed after it dried out, and the royalty paid on its dry weight. The ore was weighed as it came from the washer, and shipped, and it was also weighed by the railroad company when it reached its destination, and upon such railroad weights at the place of destination, the freights were paid, the royalties adjusted, and each month the account settled, and a receipt taken in full for the amount shown to be due. The defendant frequently made objection to the deductions made on the weights at the place of shipment, but continued during a period of seven years to receive the monthly statements, returns, and payments, and to give receipts in full for the balance due each month. This court very properly held that, although the method of ascertaining the weight of the ore may not have been in accordance with the contract, yet that the long acquiescence of the defendant in the method of weighing adopted, with full knowledge of all the facts^ was a waiver of its right to insist upon the terms of the contract. The question involved was the right of the defendant, after acquiescing *277for seven years in tlie method adopted for weighing the ore, to go behind such settlements and receipts in full, and insist upon recovering upon another and wholly different method of determining its weight. The long acquiescence in the method .of weighing the ore, and the continued monthly settlements on that basis, constituted an implied agreement between the parties to be bound by the method of weighing pursued; and the parties were held to the agreement thus evidenced by their conduct. There could have been no settlement unless a method of weighing had been determined upon. Each monthly statement of the account’ depended entirely upon the weight of the ore, and could not have been made out or settled until that fact was ascertained.
In the case at bar, the only fact to be known, in order to make the monthly settlement provided for in the contract, was the number of feet of timber hauled the preceding month. Those settlements did not depend upon the amount Camp might eventually owe on account of damages for failing to fully perform his obligations under the contract.
If in the case at bar "Wilson was seeking to go behind his settlements for the logs hauled, and to recover upon another, and different mode of measurement, the case cited -would be directly in point, and would effectually deny his right to do so. 'This suit was not brought, however, for any such purpose. The settlements for the logs hauled are admitted to be correct. The suit was brought to recover damages from Camp for his breach of contract, in failing to furnish Wilson with the facilities agreed upon for cutting and hauling the logs, thereby causing him great delay, and depriving him of the ability to deliver twenty million feet within two years, as provided by the contract. Of this default on his part Camp' had due notice, and was repeatedly, during the progress of the work, warned by Wilson that he would have to compensate him in damages for whatever loss he might suffer in consequence of such default; *278and, in response to a threat of suit by Wilson, on one occasion, Gamp said: “ Wait until I get through with the Gay Company to see what they are going to do.” As already seen, the right of Wilson to make this demand is not affected by his monthly settlement of the amount due for the logs he was permitted to deliver, and hence there was no error in the court’s refusal to> give the second instruction, nor was there any prejudice to the defendant in giving, in lieu thereof, the instruction designated as Ho. 13.
The third assignment of error is the court’s refusal to set the verdict aside, first, because contrary to the evidence;"and, second,, because excessive.
In this action of the court there was no error. The evidence tended strongly to sustain the plaintiff’s claim, and, upon -yell settled principles, the verdict cannot be set aside upon either of the grounds urged.
Tor those reasons I am of opinion that the judgment of the Circuit Court should be affirmed.
Reversed.