A motion for rehearing is made herein based principally on two assumptions: that the decision is erroneous (1) for not expressly ruling that the retention by *476the depositor without objection of the bank statements with the printed notation thereon constituted the series of statements an “account stated,” and (2) for not ruling that the signed receipt constituted a contract between the bank and the depositor.
(1) It is true, as was stated in the opinion, that bank statements have been given effect as accounts stated by some courts and by this court under some circumstances. But an account stated is an agreement between debtor and creditor that the items of the transactions between them are correctly stated in a statement rendered, that the balance shown is owing by the one party to the other, and that the one promises to pay that balance to the other. 1 Corp. Jur. p. 678; 1 Words and Phrases (1st series) 93. If a depositor and his bank should expressly agree that a bank statement was correct, it would no doubt stand as an account stated and presumptively bind the bank to pay a balance shown to the depositor’s credit or the depositor to pay an overdraft shown. The theory is that the debtor has admitted the debt and promised to pay it. The admission is usually express, and made upon the parties meeting and going over the items together. The admission of correctness and an implied agreement to pay may be presumed from retention for an unreasonable time without objection or explanation by the debtor on receipt of an itemized statement. 1 Corp. Jur. p. 691. But this presumption is open to explanation and may be rebutted. 1 Corp. Jur. p. 692. Here explanation Was made by the plaintiff that rebutted the presumption of agreement by him that the account was correct and promises to pay were not involved from the nature of the statements and the circumstances. The principles of the “account stated” doctrine hardly apply to the situation. But if they do, as stated in the opinion, the account is still open to correction for mistake.
*477(2) The court did not hold that an agreement may not be made between a bank and a depositor of nature as shown by the recitals in the receipts signed by the plaintiff. We merely held that an agreement on the part of the depositor to such effect would not be presumed from the mere fact that the receipt for the returned checks signed by the depositor contained the language thereon printed, in the face of proof that the recital in the receipt was never called to the attention of the depositor and that the depositor had not noticed it and did not know of its presence in the receipt. If such an agreement is expressly made as condition of the bank’s accepting an account when it is opened or is so made thereafter as condition of accepting further deposits, it may be that it would be upheld and would bind a depositor to the strict terms of the recital. Possibly, however, a bank would not be permitted on grounds of public policy to exempt itself from liability for the consequences of its negligence or from obligation to correct its errors merely because not notified thereof by the depositor within ten days from receipt of a statement. These are questions upon which there is here no occasion to express opinion. We are not unmindful that “It is well established that as a general rule a person is not permitted to repudiate a written obligation by saying when called upon to respond to it that he did not read it when he signed it or did not know what it contained,” nor that “it has been held that this rule applies to what is in form a receipt if it also contains an assumption of a written obligation.” See Lefebvre v. Autoist Mut. Ins. Co. 205 Wis. 115, 236 N. W. 684 (decided May 12, 1931), wherein the subject of the force of recitals in receipts was considered. There is a distinction between receipts, releases, and the like, unwittingly signed as mere receipts, and formal written instruments of purely contractual nature signed by parties intending by their signatures to enter into a contract and under*478standing that they are so doing. To apply the rule in all its strictness, it is essential that the transaction and circumstances involved raise the writing to the status of a contract. Here there was no transaction between the parties relative to the assumption of a contractual obligation by the plaintiff, and the circumstances clearly indicate that the plaintiff did not intend to assume and did not know that he ostensibly was assuming any contractual obligation. This precludes considering the recital on the receipts as constituting an agreement by which the plaintiff assumed contractual obligations as recited.
The decision of the instant case seems to have aroused undue excitement in banking circles, judging from the briefs filed amicus curies. The excitement apparently arises from realization of possible results of the application of long established rules, rather than the promulgation of any new doctrine. It may be that the old rule of holding banks to make good to the depositor the amount paid out on checks forged against his account is harder upon banks than it formerly was, in view of the multitude of present-day transactions and the difficulty of detecting forgeries in the hurry and stress incident to the conduct of business in large banks, but we cannot for that reason relax that rule or lay down new rules to avoid results of its application.
The motion for rehearing is denied, with $25 costs,