
    Argued November 22;
    affirmed December 10, 1935
    IRWIN v. HORSEFLY IRRIGATION DISTRICT
    (51 P. (2d) 1043)
    
      John Irwin, of Klamath Falls (E. L. Elliott, of Klamath Falls, on the brief), for appellant.
    
      Wm. Ganong, of Klamath Falls, for respondent.
   BEAN, J.

This is an action on an account stated for services of an attorney. Judgment was rendered for defendant. Plaintiff appealed.

The gist of the allegations of the complaint is that on or about December 30, 1933, in Klamath county, Oregon, an account was stated by and between plaintiff and defendant for and on account of legal services rendered by plaintiff to defendant, by which there was ascertained to be due and owing plaintiff from defendant a balance of $1,729.32. The answer denies this portion of the complaint, and all thereof; the gist of the further and separate answer is that defendant paid plaintiff for his services in full satisfaction of his claim. The reply put in issue the new matter of the answer.

No bill of exceptions was filed in the case; hence the only question for us to determine is whether the answer contains a defense to the complaint. This is too well-settled to require a citation of authorities.

Plaintiff claims, as we understand, that the only question relates to the pleadings. There being no testimony brought into the record, it will be assumed that the testimony supported defendant’s case, or that there was a lack of proof of plaintiff’s case. In the absence of a bill of exceptions we are precluded from considering objections interposed by plaintiff, or any questions in regard to the testimony.

Suffice it to say that defendant’s further and separate answer is not inconsistent with the denial of plaintiff’s allegation in regard to the stated account. The new matter in the answer negatives the existence of an indebtedness from defendant to plaintiff upon which an account stated could be predicated. This may be done by showing payment before the claimed agreement was made: Mayer Coal Co. v. Stallsmith, 89 Kans. 81 (129 P. 831, 832); Kaminsky v. Mendelson, 25 Misc. 500 (54 N. Y. S. 1010). The answer of defendant contained a complete defense to plaintiff’s complaint.

The rule invoked by plaintiff that an account stated can only be attacked for fraud, mistake or manifest error, does not apply to a case where the existence of the account stated is denied: 1 C. J. 728, § 399.

There is no other question for us to consider. The judgment of the circuit court is affirmed.

Campbell, C. J., and Rand and Bailey, JJ., concur.  