
    J. B. Withers, as Administrator of the Estate of E. J. Baker, Deceased, Plaintiff in Error, vs. W. Y. Sandlin, Defendant in Error.
    1. An account sued on as the cause of action with an ex-parte affidavit attached, to Lae effect that the account stated is fust and true as stated, and no part of same has been paid, is not evidence per se of the correctness of the account and it is error to admit it in evidence as such
    2. An administrator of an estate may become hound in his replesentative capacity upon an account stated by bim with a creditor ^of the decedent of whom he is representative, bul the mere silence of an administrator, or failure to object, when an account against his intestate is presented to him for payment is not alone sufficient to authorize the infeience that he has theieby stated the account and le* lieveti the claimant of the necessity of establishing it in the usual way, or put upon the administrator the burden of affirmatively establishing mistake or error .
    3. Section 1095, Revised Statutes, disqualifying certain interested persons from testifying against the estates of deceased persons, does not prohibit a person interested in the result'of the suit from testifying' to a conversation had exclusively between the decedent and a third party as against decedent’s administrator, provided the interested witness took no part in the conversation either actually or by acquiescence.
    4| Though an account stated be proved, yet if it clearly appear that such account or particular items charged therein be wholly unfounded no recovery can be had for the unfounded claim or items.
    Writ of error to the Circuit Court for Hamilton County.
    The facts of thie case are stated in the opinion otf the court.
    
      Roberson & Small, for Plaintiff in Error.
    
      B. B. Blackwell and D. B. Johnson, for Defendant in Error.
   Mabry, J.

This 'cause was referred by the court to its commissioners for investigation who have reported that it should be reversed. After a careful consideration the court is. of the opinion that the judgment should be reversed for reasons stated in this opinion.

The suit wa® by the defendant in error against plaintiff in error, declaration originally filed containing common counts for goods, wares and merchandise sold and delivered ; for work and labor done; for money lent; for money paid; for rnloney received, and fori an account stated. Subsequently a special count was added alleging that E. J. Baker, deceased, in his lifetife contracted with I. T. Carter in his lifetime for the latter to locate and survey lands situate in the counties of Echols and Clinch, State of Georgia, and for such services it was agreed by and between said parties that Carter’s compensation should be equal to one-half the value of the lands so located; that under said agreement Carter in the lifetime of Baker located and surveyed large tracts of land, to-wit: Twenty-five lots in Clinch county and twenty-five lots in Echols county, each of said lots being of the value of $200; that Carter for value received transferred and assigned all of the ®aid claims and' demands against Baker to plaintiff, of which defendant had due notice, and that he neglected and refused to pay the same, though often requested to do so, to the damage cf plaintiff in the sum' of $3,500. Pleas were filed to the original declaration and one to the special count which were treated in the trial court as the general issues to all the counts; The trial, which was a second one, subsequent to the reversal in this court (Withers v. Sandlin, 36 Fla. 619, 18 South. Rep. 856), resulted in a judgment against plaintiff in error, administrator of the estate of E. J. Baker, deceased, for $3,016.84, to be levied of the goods and chattels, lands and tenements of the estate of E. J. Baker, deceased, in the hand® of said Withers, administrator to be administered. The writ of error is from this judgment.

The case was presented in the trial court in a very confused way, an dthere is some doubt whether the suit is against plantiif in error in his representative capacity as administrator, or individually, and also whether the pleas filed are sufficient.

As no objection was made by demurrer or otherwise to'any of the pleadings, we will consider the case here as it was treated in the trial court as one against plaintiff in errofijajn his representative capacity as administrator of E. J. Raker, deceased, and examine such of the objections presented as are' deemed essential.

To maintain the issues on his behalf plaintiff below offered in evidence the following account-with affidavit and endorsement thereon, filed as bill of particulars, viz : E. J. Baker' to I. T. Carter, Dr.

Sept. 15, 1888. For surveying and locating fifty- B eight lots of land in Echols and Clinch counties, State of Georgia......................$2,750 00

To five nnofi’ths' sendees rendered E. J. Baker, ending Nov. 23rd, 1888..................... 125 00

$2,875 00

State uf Florida,

Hamilton Gounty.

Before me'personally came I. T. Carter who, being duly sworn, says that the above stated account is just and true as stated, and that the same is due and that no part thereof has'lteen paid. I. T. CARTER.

. Sworn and subscribed to before me this June 12th, A. D. 1889. D. B. JOHNSON,

Notary Public, State at Large. (Endorsed)

For value received I hereby transfer, assign and set over to W. Y. Sandlin the within account with full ower to collect the same by suit as fully ais I myself would or could have done. I. T. CARTER.

$572.78. Received on within claim $572.78. Oct. 3rd, 1890.”

Defendant objected to the introduction of the paper in evidence on the ground that it was nut evidence of any indebtedness by E. J. Baker to I. T. Carter," and that it was improper to allow the same with endorsements, especially the affidavit of 1. T. Carter, to be. read to the jury. The objection was overruled and the paper admitted in evidence, to which ruling the defendant excepted. We are of the opinion that the. court erred in permitting the account with the affidavit attached to be, introduced in evidence. The account was not evidence per se of any liability against the defendant administrator. Belote v. O’Brian’s Administrator, 20 Fla. 126. In connection with proof that the account had been stated between the parties it might have been admitted. Jacksonville M. P. Ry. & Nav. Co. v. Warriner, 35 Fla. 197, 16 South. Rep. 898. The affidavit attached to the account was entirely ex parte and inadmissible as evidence in any view and this it apparent from the paper itself. It appeared from the pleadings that defendant was sought to be held liable as administrator of E. J. Baker, deceased, on a claim in favor of I. T. Garter against Baker, transferred to plaintiff, and Carter made the affidavit to the account, and therein stated that the “above stated account is just and true as stated, and that the same is due and no part thereof has been paid.” If we were to concede that a party holding an account against the estate of a deceased per-sun, in which there were items ior service s rendered the aeteaaud, could under our statute i,¡Section 1095, Eevised ¡Statutes) testify that the account was just and true as stated, that would not authorize an ex parte affidavit to that effect to- he admitted in evidence-. The benefit of cross-examination would entirely be gone if ,such a'rule should be established.

The following portion of the charge of the court to1 the jury was excepted to by defendant, viz: “You are instructed that part payment of an account presented for payment is not conclusive evidence that the whole account is a valid or just account, but it may be evidencie and is prima facie evidence that a part of the account thus paid was just and valid, and may, in the absence of evidence showing that the balance of the account was objected to go to show that the justice of the whole acount was acquiesced in by the debtor. If from the evidence, or-weight of the evidence, yon should find that the account of I. T. Carter against E. J. Baker, defendant’s intestate, sued on, was presented to the defendant for payment as administrator, he was bound to examine it and to have Mated his objections thereto- within a reasonable time, if he had any, and if he did not do so, -such account under ordinary circumstances will be treated presumptively by acquiescence a stated account. And a stated account establishes prima fa>ci& the correctness of the items of the account, and unless this presumption is overcome by proof of fraud, mistake or error, it becomes conclusive; still an account stated may be impeached for fraud, mistake or error. The party impeaching it, has the burden of proof thrown upon- him of such impeachment. You are also instructed that what is a reasonable time within which a party must object or become bound dependí» upon, the relation of the parties and the usual course of business between them/ If from the weight of evidence you should find that the account here sued on was presented to defendant for paymnt by I. T. Carter, the assignor, to the defendant for payment, and that the defendant made the payment of $572.78 on the sanie, and that he made no objections to «-aid account then and there, and that after-wards the said account was assigned the plaintiff, Sandlin, and that the defendant had knowledge of said assignment, and demand of payment was made upon the defendant for payment and he made no objections to said account until after suit thereon, in this case unless the. defendant has shown by a preponderance of evidence that said account is -erroneous or fraudulent, you should find for the plaintiff such sum as is just from the evidence.” This portion of the instructions given to the jury in favor of the plaintiff is unobjectionable, except that part to the effect that if the account of I. T. Carter against E. J. Baker was presented to the defendant as administrator for payment he was bound to have examined it and to have stated his objections thereto, if he had any, within a reasonable time, and if he did not do so, such account under ordinary circumstance® will be treated presumptively by acquiescence as a stated account. The court doubtelss was influenced in this portion of the charge by the decision in Martyn v. Amold, 36 Fla, 446, 18 South. Rep. 791, hut the rule there stated as' ta the: acquiescence in an account rendered had reference to parties in their own right and not to the case where the party against whom: the account stated is claimed is an administrator otf an. estate. The mere silence of an administrator or failure to object. a,s the charge seem® to imply, when an account against his intestate is presented to him is not sufficient to authorize the inference that he has thereby stated the account and so relieve the claimant from establishing it in the usual way, or put upon the. estate the burden of affirmatively establishing mistake on error. Schutz v. Morette, 146 N. Y. 137, 40 N. E. Rep. 780. It is well .settled that an administrator may become bound in liiis representative capacity upon an account stated by him with a creditor of the decedent of whom he is representative.- Ellis v. Bowen, Forest’s Rept. 98; Segar v. Atkinson, 1 H. Black. 102; Powell v. Graham, 7 Taunton 580, S. C. 1 Moore 305; Ashby v. Ashby, 7 Barn. & Cress. 444; Schutz v. Morette, supra; 3 Williams on Executors (7 Am. Ed.) 289; 1 Cbitty on PL (16 Am. Ed.) 227. As stated above, however, the mere silence or failure to object is not sufficient to show the statement of account against administrator.

We think there was no error in the court’s refusal to give the charges requested by defendant below. The requ'st numbered two. (2) if it had been confined to the special count of the declaration should have been given, but ais drawn was, applicable to the entire declaration, and was, therefore, properly refused.

Exception was taken to the ruling of the court permitting John M. Carter to testify against the defendant administrator. The objection made by counsel is that John M. Carter was interested in the result of the suit, and therefore disqualified ais a witness under Section 1095, Revised Statutes. The ordinary bill of exceptions shows that objection was made to the witness on the ground stated, but there is no showing there that the witness had any interest in any way in the suit or the result thereof, and to the extent of the assignments of error on this point there are no sufficient facts to authorize their consideration. As the case has been twice tried and must again be sent back, and .the point sought to be raised may be presented' again, as appears in the evidentary bill of exceptions, we will settle it, especially as under previous decisions of this court (Stewart v. Stewart, 19 Fla. 846; Tunno v. Roberts, 16 Fla. 738, text 750), it might become the duty not only of the Circuit Court, but this court, to disregard the testimony of a witness that was incompetent to testify under the section of the statute mentioned. John M. Carter testified that he was a son of I. T. Carer and that, as he understood, the balance. of the account isued on, after paying W. Y. Sandlin the amount of I. T. Carter’s indebtedness and all expenses of collecting the samie, was to go to the estate of I. T. Carter, and in that way he was interested in the result of the suit. He then testified that he was present when Baker and Carter made an agreement for surveying the lands; that they talked the matter over in his presence; that Carter was to have one-half of the lands for the work, and Baker agreed to -settle with Carter for hi® half interest on a basis of $100 a lot, viz: that he was to receive $50 a lot; that there were about forty lots; that about fifteen of the lots Carter was to be paid a salary for the work, but he did not know how much; that the lands lay in Clinch and Echols, counties, Georgia; that Lie helped Carter to survv the land® about one week, but did not know how many lots were surveyed during that time. On cross examination the witness testified as follows: “The work that I. T. Carter was to do was to survey and locate those lands and quiet the titles eio that E. J. Baker could work them for turpentine and saw-mill purposes. My understanding was that I. T. Carter was to put Baker in peaceable possession of ¡the lands. . Other parties were claiming the lands and objected to any one’s working the timber. The Moodys 'claimed and it was to quiet these claims that Carter was employed, which he failed to do. I know that Baker never did work nor get the ussession of the lands, and that J. B. Wither® never got possession of them nor work them, and that other parties are in possession of them.” Conceding that the testimony showed ¡such a direct and certain interest on Carter's part as to have disqualified him from testifying to any transaction or communication between .himself and the deceased, it did not appear from the testimony that the witness undertook, or was permitted, to testify to any such transaction ¡or communication between himself 'and the deceased. The statute referred to, it has been held, wa® adopted from New York, and 'it is almost identical in language with the New York statute. Adamls v Board of Trustees of Internal Imp. Fund, 37 Fla. 266, 20 South. Re.p. 266. It has been construed by the courts of New York, both before and since its adoption in this State, not to1 prohibit a party to a suit, or a person interested in the event thereof, from testifying to a conversation had exclusively been a decedent and a third party, as acainst the decedent’s administrator, provided the interested party so testifying took no part in the conversation, either actually or by acquiescence. Simmons v. Sisson, 26 N. Y. 264; Lobdell v. Lobdell, 36 N. Y. 327, text 333; Cary v. White, 59 N. Y. 336; Hildebrant v. Crawford, 65 N. Y. 107; Holcomb v. Holcomb, 95 N. Y. 316, text 325. See. also, A. & E. Ency. Law (1st ed.) p. 722 et seq. It nowhere anpears that the witness Carter participated in any manner in the communication or transaction between T. T. Carter and E'. J. Baker concerning which he testified, and it does not appear, therefore, that his evidence as to that transaction was inadmsisible as against the defendant below.

If we eliminate the testimony of the sworn account, held to have been improperly admitted in evidence, the verdict rendered by ilie jury can not be sustained on the showing before us. It can not support a verdict for plaintiff upon (lie special count under any view that may be taken. It shows affirmatively that the transaction out of which the claim of plaintiff’s assignor arose was-a contract between him and Baker whereby the former was to survey and locate certain l'ots of land and quiet the titles so that the latter could work them for turpentine andi saw-mill purposes, and that Carter never performed that contract, so far as quieting the titles was concerned, and neither Baker nor his administrator ever got possession of the lands or worked them-. The testimlo-ny shows affirmatively that Carter failed to substantially perform the contract proved in evidence, and therefore had no rightful claim thereunder against Baker or his administrator, which could be the basis of a verdict upon the •special count. The account 'stated declared upon and sought to be proved consisted of two items only, the larger for §2,750, the smaller for §125. But the larger item consisted of the alleged sum claimed to be due upon the contract sought to be proved under -the special count and it affirmatively appeared from the evidence without contradiction that nothing was due Carter by Baker under that contract. Though the evidence upon the question of account stated was sufficient to prove it, that account in so far ais the large item was concerned was nro'ven by uncontradicted evidence to be without foundiation, and the only other claim attempted to be proved was the small itemí of §125 which would not justify a verdict for the large sum rendered by the jury. Though an account stated be proved yet if it clearly appears that such account or any particular item charged therein is wholly unfounded no recovery can be had for such unfounded claim. Patch v. Lyon, 9 Ad. & El. (N. S.) 147; Gough v. Tindon, 21 Law J. Rep. (N. S.) Exch. 58, S. C. 8 Eng. L. & Eq. Rep. 507; Martyn v. Amold, 36 Fla. 446, 18 South. Rep. 791.

The judgment will be reversed, and it is so ordered.  