Patillo v. Allen-West Commission Co.

SANBORN, Circuit Judge

(concurring). “Where an itemized account showing a balance is duly rendered, the party receiving it is bound within a reasonable time to examine the same, or procure some one to examine it, and object, if he disputes its correctness. If he omit to do so, he will be deemed, from his silence, to have acquiesced, and will be bound by it as an account stated, in the absence of fraud or mistake. Lockwood v. Thorne, 11 N. Y. 170, 62 Am. Dec. 81; Davenport v. Wheeler, 7 Cow. 231; Wiggins v. Burkham, 10 Wall. 129, 19 L. Ed. 884; Philips v. Belden, 2 Edw. Ch. 1; Langdon v. Roane’s Adm’r, 6 Ala. 518, 41 Am. Dec. 60; Oil Co. v. Van Etten, 107 U. S. 325, 1 Sup. Ct. 178, 27 L. Ed. 319; Bank v. Morgan, 117 U. S. 96, 6 Sup. Ct. 657, 29 L. Ed. 811. This is especially true in respect to accounts rendered between merchants, and between merchants and their factors. Manufacturing Co. v. Starks, 4 Mason, 297, Fed. Cas. No. 11,802; 1 Am. & Eng. Ene. Law, 121.” Porter v. Price, 80 Fed. 655, 26 C. C. A. 70, 72, 49 U. S. App. 295, 300; Atkinson v. Allen, 71 Fed. 58, 60, 17 C. C. A. 570, *731572, 36 U. S. App. 255, 260; Commission Co. v. Patillo, 33 C. C. A. 194, 90 Fed. 628, 632. Proof of tbe facts that an account is stated by one merchant to another, who is his debtor, and is received and retained by the debtor without objection, therefore constitutes a good cause of action. It necessarily follows that the pleading of these facts under the Code, which prevails in the state of Arkansas, and declares that the complaint shall contain only “a statement in ordinary and concise language, without repetition, of tin facts constituting the plaintiff’s cause of action” (Mansf. Dig. 1884, § 5026), is a good plea of an account stated. Moreover, it is too late to aver in this court for the first time that the complaint in this action does not sufficiently plead a stated account. It is an invariable rule of practice that an objection to the sufficiency of a complaint which might have been fatal on demurrer will not be sustained when made for the first time in an appellate court, if the facts material to support the judgment or decrecí are fairly inferable by any reasonable intendment from what is alleged in the pleading. Adam v. Norris, 103 U. S. 591, 595, 26 L. Ed. 583; Lincoln v. Iron Co., 103 U. S. 412, 415, 26 L. Ed. 518: Railroad Co. v. Lindsay, 4 Wall. 650, 656, 18 L. Ed. 328; Ankeny v. Clark, 148 U. S. 345, 355, 13 Sup. Ct. 617, 37 L. Ed. 475; Morrow Shoe Mfg. Co. v. New England Shoe Co., 6 C. C. A. 508, 57 Fed. 685; Loewer v. Harris, 6 C. C. A. 394, 57 Fed. 368; Herrick v. Leveller Co., 8 C. C. A. 475, 60 Fed. 80; Manufacturing Co. v. Mellon, 7 C. C. A. 439, 58 Fed. 705; Railway Co. v. McLaughlin, 17 C. C. A. 330, 70 Fed. 669; Drake v. Barton, 18 Minn. 462, 444 (Gil. 414). The facts material to support the judgment below on the ground that there was an account stated between the parties are not only fairly inferable from the complaint, but are clearly set forth therein. The case has been twice tric'd without objection to the sufficiency of tins pleading. It was reversed by this court on the first trial upon the express ground that the evidence of the account stated was pertinent to the* issue, and conclusive. This court said in closing the opinion:

“If the law will presumo an nsreouiont from .silence in any case, we think jfc will in this case, and that the accounts which have been rendered, by the jilaintifiv.and received by the defendants without objection, must be considered as stated or settled accounts, and as liquidated by the parties, as fully so as if they had been signed by both. The balance is a debt as a matter of contract implied by the law. it is to be considered as one debt, and a recovery may be liad upon it without regard to the items which compose it.” no Fed. 632, 33 C. C. A. 108.

In my opinion, both upon general principles of law and for the reason that this has become the law of the case under the decision in 90 Fed. 628, the complaint in this case states a good cause of action upon an account staled, and it .should be tried upon that theory. I concur in tin; reversal on the ground that the evidence at the last trial was not conclusive that the plaintiffs in error were ea-topjied from contesting the item of $508.75, due July 1, 1894, by the accounts that were rendered. But under the decision in 90 Fed. 628, it seems to me that the law of tbe case is, and ought to be, that 1he accounts received by the plaintiffs in error estop them from contesting the validity of their debt for the two commissions of $1,025, due June 24,1892, and $1,198.75, due September 1, 1893.