
    JOHN A. MACPHERSON, Survivor, &c., Plaintiff and Respondent v. JOHN H. SMALL, and others, Defendants and Appellants.
    ACCOUNT STATED.
    1. Question op law, when.
    On a given state of facts it becomes a question of law whether the transaction constitutes a stated account.
    
      (a) Application.
    
    1. The proof on behalf of plaintiff was to the effect that the account sued on was presented, that defendants claimed time to pay by installments on account of the heavy balance. A month after its rendition, defendants sent a check for one hundred and fifty dollars. One of the defendants, having been called as a witness, testified, “I made a promise to pay so much. I cannot affirm or deny that I may have done so. I did not myself know at any time the exact state of the account.” He further testified that he afterwards refused to pay the account, but did not say when or to whom.
    Before Sedgwick and Speir, JJ.
    Decided, June 5, 1876.
    Held,
    it being admitted that the account was received by the defendants, showing a balance due to the plaintiff, and no proof of any notice having been given that thfey rejected the account after examination, they iaMst be deemed in judgment of law to Time acquiesced.
    
    Appeal by defendants from a judgment entered against them, upon a verdict of a jury, and from-an order denying a motion made by them on the minutes, for a new trial.
    
      Sullivan, Kobbe & Fowler, attorneys, and Mr. Kobbe, of counsel, for respondent.
    
      D. Lord, Jr., attorney, and D. D. Lord, of counsel for appellants.
   Speir, J.,

wrote for affirmance, laying dow&’Sthe propositions in the head-note.

Sedgwick, J., concurred.

Judgment and order affirmed with costs.  