On Petition for Rehearing.
Hadley, J.Counsel for appellant complain that we misstated-the record, and avoided the decision of a question relied upon for a reversal. Eor the sake of clearness We will restate that the case was tried upon a complaint consisting of two paragraphs: The first, on a policy of insurance, the second, on an account stated. To an interrogatory propounded to them the jury answered that they found for the plaintiffs on the second paragraph of the complaint. The jury, also, in their - general verdict stated that their finding for the plaintiffs was on the second paragraph of the complaint.
The only errors relied upon for reversal, as stated in appellant’s brief, are (1) the overruling of appellant’s motion for judgment in its favor on the interrogatories and answers thereto, notwithstanding the general verdict, and (2) the sustaining of appellees’ motion for judgment on the general verdict.
The fact- that the general verdict specified the particular paragraph of the complaint upon which it rested escaped our attention, and we disposed of the point as if the fact w'as only disclosed by an answer to an interrogatory. We regret the inadvertence, and gladly embrace the opportunity afforded by the petition for a rehearing to amend it.
Appellant’s contention is (1) that the cause of action does not admit of an account stated, and (2) that the answers to interrogatories show that there was no account stated between the parties. Conceding the claim that a finding for the plaintiffs on a particular paragraph was equivalent to a finding for the defendant on the other paragraph, this fact will not invalidate the judgment before us? *328unless it is conclusively shown by the special findings that there was no account stated between the parties as a basis for the judgment. The fact that the plaintiffs’ claim arose from the loss, by fire, of property covered by a policy of insurance issued by the defendant, is not of itself sufficient to defeat an action on an account stated. If a large number of articles insured under the plaintiffs’ policy were destroyed by fire — as appears from the special findings to have been the case — and the various items were by the plaintiffs and defendant — through its authorized agents— considered, and the value of such articles fixed, and the aggregate amount thus reached was agreed by the parties to be the correct amount due the plaintiffs from the defendant, and the defendant agreed to pay such sum in discharge of the claim, we perceive no reason why the plaintiffs may not, if they choose, maintain an action as for an account stated on such claim.
“It is advisable,” says Mr. Chitty, “in all declarations in assumpsit for the recovery of a money demand (excepting against an infant, who can not in law state an account), to insert a count on an account stated. The acknowledgment by the defendant that a certain sum is due, creates an implied promise to pay the amount, and it is not necessary to set forth the subject-matter of the original debt -x- * -x- or -(¡hat there should have been cross-dealings or accounts between the parties. The present rule is, that if a fixed and certain sum is admitted to be due to a plaintiff, for which an action would lie, that will be evidence to support a count upon an account stated.” 1 Chitty, Pleading (4th Am. ed.), *358, *359.
The case, as to the questions now involved, stands thus:In their complaint the plaintiffs added a second paragraph on an account stated, in which they sue the defendant for a specific sum which they allege was the result of an accounting between them, and which the defendant agreed to pay. The jury found by their general vqrdict that unde;* *329all the evidence produced the plaintiffs had established the second paragraph of their complaint. In the absence of a finding to the contrary, we must assume that everything essential to the support of such' verdict was sufficiently proved. An isolated fact disclosed by an answer to an interrogatory will not he admitted to overthrow a general verdict if any other controlling fact relating to the same subject might have been established under the issues. Such an isolated fact, or special finding, to overcome the general verdict, must be of a nature so inherently incompatible with the right of recovery as to exclude the possible existence of other supporting facts which might have been proved. City of South Bend v. Turner (1901), 156 Ind. 418, 54 L. R. A. 396, 83 Am. St. 200, and cases cited.
Appellant argues that the absence of any accounting is shown by the following interrogatories . and answers: “(22) Did Perry Heritage, as director, and John L. Thomas, as secretary, of the defendant company, Visit the home of the plaintiffs on the 11th day of December, 1896, and there take down plaintiffs’ statement as to what they claimed was destroyed by fire? Ans. Tes. (23) After Heritage and Thomas, at the time named, had taken down the list of property which plaintiffs claimed had been destroyed, and its value, did Jesse Eeavis then ask, ‘When will I get my money,’ and Thomas answer that they would take thirty days in which to investigate, and to ascertain whether there was any crookedness, or anything wrong, and if they found everything all right he Would get his money in thirty days ? And was that all that was said concerning the question? Ans. Tes, except plaintiff said ‘I need my money.’ ” Assuming that both branches of interrogatory twenty-three (which should not have been submitted to the jury for being double) were answered in the affirmative, such answers by no means go to the extent of finding that there was no settlement and agreement between the parties, prior to the suit, in respect to the amount due the plaintiffs *330from the defendant on account of the loss of their, property by fire. The answers at most only cover what was said and done between one of the plaintiffs and certain officers of the company at a particular time, or on a particular day. There is not, from what is disclosed, the slightest suggestion that an adjustment of plaintiffs’ loss, and a promise by the defendant to pay the sum sued for, did not take place at some other time. We must therefore presume, in support of the general verdict, that the jury found that such settlement and promise did take .place at some other time, under circumstances not to be affected by what they found took place on December 11. '
Upon further consideration we find no error in the rec ord, and the petition for a rehearing is overruled.