
    Fritz Bauer, Respondent, v. Augusta Ambs, Appellant.
    Second Department,
    April 21, 1911.
    Account stated—essential elements — contract — agreement to pay debt of another—lack of consideration — Statute of Frauds—failure to establish account stated.
    An account stated must be based on previous transactions out of which the indebtedness arose; the relation of debtor and creditor must exist between the parties as to the items forming the account and all of them. Such account cannot be made an instrument to create liability where, none existed, but only determines the amount of an existing valid debt. A wife is not hable on her promise to pay a past indebtedness of her hus- ■ band where there is no consideration for her promise and it is not in writing as required by the Statute of Frauds.
    Action to recover' on an account stated. Evidence examined, and held, that a judgment for the plaintiff based upon a finding that the defendant promised to pay for goods furnished to her husband was against the weight of evidence. ¡
    Appeal by the defendant, Augusta Ambs, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of plaintiff, rendered on the 27th day of September, 1910, in an action on an account stated.
    
      Maxson & Jones, for the appellant.
    
      Julius S. Belfer, for the respondent.
   Rich, J.:

The complaint alleges that an account was stated between the plaintiff’s assignor and defendant, and that upon such statement the sum of $340.20 was found to be due from defendant to said assignor, which, although demanded, was unpaid. The answer denies each and every allegation of the complaint.

The principles applicable to an account stated are well settled. It must be based bn previous transactions out of which the indebtedness arose ; the relation of debtor and creditor must exist between the parties as to the items forming the account, and all of them. Such an account cannot be made the instrument to create a liability where none existed, but only determines the amount of an existing valid debt.

It appears that in 1905 the defendant loaned to her husband, John Ambs, $1,200, with which he engaged in the business of buying and selling meat in a building owned in part by the defendant, for which he paid rent. He conducted the business in his own name, which was upon his signs and stationery ; he purchased in his own name, paid with his own checks, kept his own bank account and made out and collected his bills receivable in his name. The defendant had no interest in or connection of any kind with such business prior to July 1, 1910, if ever. From January 16, 1906, he did business with plaintiff’s assignor, who had' no business dealings, of any kind with the defendant prior to said July first. On that day defendant’s husband was indebted to plaintiff’s assignor for meats purchased of him, in an amount approximating $400.

The plaintiff called but one witness, Wright, who testified that on June 27, 1910, he was employed by plaintiff’s assignor; that he went to the place of business of defendant’s husband to procure a payment on the account and was promised by Mr. Ambs a check for at least $200, which he called for bn July first following. He says: “ Mr. Arabs handed rae a check for $150 which I wasn’t satisfied With.. I said, c Mr. Arabs,, this will not do; we cannot give yoxi any more meat if I don’t see any more money:’ Then'Mrs. Arabs says, ‘ Ain’t I good enough for it; ain’t my credit good; I own the house and I own the shop?’ I said, ‘Well, that is a surprise to me, Mrs. Arabs; I never knew that.’ Mrs. Arabs said, ‘I will pay that and you keep on selling Mr. Arabs the meat as before.’ I said, ‘Well, if that is the case I will' have to charge the goods to you.’ She said, ‘Ho, you just keep on charging up to John Arabs and I will pay the bills.’ ” Tike witness testifies that on August fifteenth following he presented to the defendant a bill made out to her husband for $340:20, composed of two items, $14.69- for three lambs and $325.si balance, and told her “ ‘We have to have some more money.? Mrs. Arabs said, ‘You don’t have to be afraid; I will pay yoju; ’ ” that she did not dispute the bill or say anything about it, except that she would pay it. This is the evidence upon Which the plaintiff relies as establishing his cause of action of an account stated. Wright testified that,.of the bill presented, but plOO was sold after his conversation With the defendant on July first. The balancé was the indebtedness of her husband existing at that time. Giving the conversation the greatest weight which can be claimed for it, it did ' not obligate the defendant for the past indebtedness of her husband. • As to his balance of account, her oral promise to' pay was void both because of there being no consideration to support it and- under thei provisions of the Statute' of Frauds. ' (See Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 31.) The bill' embraced $240, an indebtedness for which she was not legally hable.

The essential elements :of an account stated are lacking, and the appellant’s exception Ito the refusal off the trial court to dismiss the complaint for that reason presents reversible error. In addition, the witness jVright testifies that his conversation With the defendant on July first took place in her ' husband’s store and in his' presencie. The defendant testifies that she never had any-conversation, with Wright anywhere, and specifically deifies the conversations to which he testified; that she was never iirher husband’s store - during business hours. She is corroborated by her husband and by one of his employees present in the store every day in June, July and August, 1910, and it further appears by the evidence of a third party that on August 22, 1910, a week after plaintiff claims the account was stated with the defendant, the witness Wright presented the - bill to defendant’s husband and demanded its payment. I think the evidence so strongly preponderates against the plaintiff’s contention that for that reason also the judgment should not stand.

The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.

Thomas, Carr and Woodward, JJ., concurred; Jenks, P. J., concurred in result.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  