
    Frank W. Robbins et al., Resp’ts, v. Charles Downey, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed March 7, 1892.)
    
    1. Appeal—Case.
    A verdict without evidence involves error of law, and such error may he reviewed in the absence of a certificate that the case contains all the evidence.
    
      2. Account stated—Statement oe balance.
    Plaintiffs sold goods to defendant and accompanied the deliveries thereof with itemized statements, and also furnished monthly statements. They finally rendered a statement of the balance due, which defendant retained and promised to pay the amount as stated therein. Held, that these facts furnished ample proof of an account stated.
    3. Same.
    To sustain an action on an account stated it is not necessary that there be an unconditional promise to pay.
    4. Evidence—Admissions.
    No foundation is necessary to the competency of a party's own admissions.
    
      Appeal from judgment of general term of the city court affirming judgment on verdict.
    Action on account stated. Answer, general denial.
    
      Malcolm Campbell, for app’lt; Phillips & Avery, for resp’ts.
    
      
       Affirming 41 St. Rep., 95.
    
   Pryor, J.

The defense being simply a general denial, the only issue for trial was whether an account had been stated between the parties. Field v. Knapp, 108 N. Y., 87; 12 St. Rep., 790; Barker v. Hoff, 52 How., 382; Fuller v. Board, 2 Kans., 445. And, in fact, no other question was litigated or submitted to the jury. If there was sufficient proof by plaintiffs of an account stated, the verdict in their favor concludes the case in this court, no matter how strong the evidence to the contrary. “ But defendant’s contention is that it results as a necessary inference of law from undisputed evidence, that no account had been stated between the parties.

The respondents answer, that, since the case does not purport to contain all the evidence, the appellant is precluded to raise the point that the verdict is absolutely without support; but a verdict without evidence involves error of law, and such error we may review in the absence of a certificate that all the evidence is before us. Halpin v. Ins. Co., 118 N. Y., 165 ; 28 St. Rep., 788.

The proposition upon which appellant relies is, that a bare statement of a balance due, unaccompanied by any account, is incapable, though accepted, of constituting an account stated. But in' a book of the highest authority we read that, “ the rule is, that if a fixed and certain sum is admitted to be due to the plaintiff, for which an action would lie, that will be evidence to support a count upon an account stated.” 1 Saunders on PI. and Ev., 48 marginal. It suffices to prove some antecedent debt or demand between the parties, respecting which an account was stated and a balance struck. Knowles v. Michel, 13 East, 249.

The charges may be all on one side, and an account stated may consist of a single item. 2 Chitty on Contr. (11 ed.), 962. “ An account stated must be made with knowledge, or opportunity of knowledge, on the part of the debtor of all the circumstances.” Kinney v. Heatly, 7 Pac. Rep., 359. “ To prove an account stated it is not always necessary to show actual examination and assent.” Benites v. Hampton, 3 Pac. Rep., 206. A promissory note is evidence of an account stated in an action by the payee against the maker. Story v. Atkins, 2 Strange, 719. So is an I. O. U. Highmore v. Primrose, 5 M. & S., 65.

In the case before us, the evidence establishes that in 1889 and 1890 the plaintiffs sold goods to the defendant; that when the goods were delivered they rendered statements with items to the defendant; and also furnished him statements of account at the end of each month; that subsequently to the last delivery of goods and to the last payment on account, the plaintiffs presented the defendant with a statement of balance due to the amount of $297.10, to which balance defendant made no objection, but, on the contrary, repeatedly promised to pay it Nor did defendant challenge the correctness of the itemized bills or of the monthly statements. We are of opinion that the proof is ample of an account stated, Manchester Paper Co. v. Moore, 104 N. Y., 680; 5 St. Rep., 747; Wiley v. Brigham, 16 Hun, 106; and hence, the evidence conflicting, that the court did not err in declining to withdraw the issue from the jury.

The objection. to evidence of defendant’s declarations on the ground that he had not been examined respecting thenq is plainly untenable; for no foundation is necessary to the competency of a party’s own admissions.

Equally untenable is defendant’s contention that, “ to sustain an action on an account stated, there must be an unconditional promise to pay,” the familiar rule being that no express promise is necessary, but from the adjustment of the account the law implies a promise to pay.

Appellant urges that the promise proved against him was to pay when he got money from the Elevated Bailway. Assuming the fact, and still it was ineffectual to defeat the action. A consideration past and executed will support no other promise than such as would be implied by law, Roscorla v. Thomas, 3 Q. B., 234; and hence, where an account has been stated between parties, and a balance ascertained to be due from one of them to the other, the law implies a promise by the debtor to pay on request; so that any ex post facto promise by him differing in its nature therefrom, ex. gr., to pay on a particular day named, would be nudum pactum, unless made upon a new consideration.” Hopkins v. Logan, 5 M. & W., 241, 249; Broom’s Comm., 326.

But, if defendant’s promise to pay when he got the money were valid, he himself testifies that he had received the money.

Appellant predicates error of the proposition in the charge that “ any account presented by a creditor to a debtor, and accepted by him, no matter whether it is an itemized statement or for a balance due, is an account stated.” To apprehend the import of this language we must construe it with the context; and so reading it we observe that the learned trial justice charged explicitly, that in order to find a verdict for plaintiffs the jury must be satisfied that “ plaintiffs rendered to defendant an account for several articles of merchandise, and that he assented to the correctness of that account and promised to pay the same.” The total effect of the charge was to propound the law correctly.

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.  