
    McCLAIN v. SCHOFIELD et al.
    (Supreme Court, General Term, First Department.
    December 15, 1893.)
    Account Stated—What Constitutes.
    Defendants employed plaintiff to sell goods at 3 per cent, commission as long as should be mutually agreeable. Afterwards they notified plaintiff that they would not pay more than 2 per cent. Plaintiff continued to sell, and defendants sent monthly statements of his sales, with remittances for his commissions, estimated at 2 per cent., which were received without objection. Held, that there was an account stated between the parties.
    Action by Daniel W. McClain against Benjamin Schofield and others. The complaint was dismissed on the trial, and' plaintiff moves for a new trial, on exceptions ordered to be heard at general term in the first instance. Judgment for defendants.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    Abraham Gruber, (Eugene M. Sanger, of counsel,) for appellant.
    Strong & Cadwalader, for respondents.
   PARKER, J.

We agree with the trial judge that there was an account stated between the plaintiff’s firm and defendants; thereafter a payment by defendants to plaintiff of the amount which such account showed to be due; and that a dismissal of the complaint was necessarily required. The defendants were carpet manufacturers in the city of Philadelphia. Plaintiff was one of a firm of commission agents for the sale of carpets in the city of New York, and has succeeded to the interests of the firm in the claims which are the subject of this action. About the 1st of December, 1887, an agreement was entered into between the parties, by which plaintiff’s firm became defendants’ agents for the sale of Wilton and Body Brussels carpets; the commission agreed upon being 3 per cent, for all sales made at the standard price of . the season for such goods, while, for goods sold at less than the standard price, it provided for a commission of 1| per cent., the term of the agreement to continue as long as mutually agreeable. Plaintiff’s firm continued to sell goods as the agent of defendants until November, 1890, and the first cause of action alleged is for the balance of commissions which plaintiff claims to be due and unpaid on account of goods sold between the 1st days of December, 1889, and November, 1890. He alleges that he has been allowed and paid only 2 per cent, commissions on goods sold at standard prices during that period, while he was entitled to 3, and it is the sum which 1 per cent, on the gross sales would produce that he claims to recover under the first cause of action. Defendants’ position was that the agreement had been modified or abrogated, and, by the amended or substituted agreement, plaintiff’s firm were to receive but 2 per cent., the amount of which had been paid prior to the commencement of this action; that, after the change in the agreement touching the amount of the commissions, the defendants sent monthly statements to the plaintiff’s firm, covering all the business transactions between, the parties, in which the commissions of the plaintiff’s firm were openly and plainly stated to be 2 per cent., and the aggregate amount of such commissions, upon such basis, was also stated; that payments in accordance therewith were made, and receipts for such amounts given by plaintiff’s firm,—by reason of which facts the defendants contended that the accounts between them had become stated, and were no longer the subject of investigation by the court, in the absence of fraud or mistake. Paper Co. v. Moore, 104 N. Y. 680, 10 N. E. 861.

A cursory examination of the dealings between the parties during the period embraced in the alleged first cause of action will make it apparent that this is not a case in which regret should be occasioned because of the necessity of applying the rule of an account stated. The plaintiff’s firm had full notice of the defendant’s determination not to pay them but 2 per cent, in advance of the .performance on their part of nearly, if not quite, all the work for which they claim not to have been fully compensated, if indeed they did not fully assent to it. As has already been observed, the contract expressly provides: “This agreement to continue in full force and effect so long as mutually agreeable.” Thus, by its terms, either party had a right to terminate the agreement at will. In December, 1889, defendants wrote plaintiff’s firm that they would not put their price down to 87½ cents a yard, but where there was a large trade, and plaintiff’s firm chose to take a 2 per cent, commission, they could sell at 90 cents, with a rebate of 2½ per cent, off; in substance, that they declined to sell at 87 and pay 3 per cent, commission. The sales which are the subject of the first cause of action are all made to four firms, to three of which the sales were made at 87½, while to the other firm the sale was at 90, with a rebate of per. cent. The plaintiff replied by letter dated January 10, 1890, in which he said:

“You wrote me that you would allow us two per cent, at eighty-seven and one-half. We are willing to do the Claflin, Kennard and Artman on that basis for this season, but, further than that, I, speaking for myself, will not go, and I think Fred feels as I do. I shall let their trade go. * * * It is for you to decide if we are to take orders as others are doing, or let them pass.”

It thus appears that there was a complete meeting of the minds of the parties as to the amount of commissions to be paid on sales to three parties named, and as to other sales there was an assertion by the defendants that they would not pay over 2 per cent, commissions, and a statement on the part of the plaintiff that he should let the other trade go. Thereafter plaintiff’s firm continued to sell defendants’ goods to the three firms which they had expressly consented to sell to for a commission of 2 per cent., and to another firm, which they did not mention in their letter of consent. Defendants monthly prepared and sent to the plaintiff’s firm a statement showing the entire sales made for the month, and the commissions of plaintiff’s firm thereon, on the basis of 2 per cent. The statements were received by plaintiff’s firm in due course of mail, and by them produced on the trial, in compliance with defendants’ notice to do so. Payments were made from time to time, and were duly entered upon the statements sent to plaintiff’s firm. They were made by the checks of defendants, and plaintiff’s firm gave receipts for the money. Plaintiff made no objection to any of these statements of account, except possibly those of February and March, 1890. He says he objected to the refusal of defendants to allow but 2 per cent, commissions upon the sales to Bauman Bros., and that the objection was by letter; but he failed to produce a copy of the letter, or make such proof of its mailing as would raise a presumption that the defendants received it. Assuming, however, that he did object to the item; the fact remains that the defendants continued to send monthly statements of account, which necessarily asserted the correctness of that item on each succeeding month, down to November following, after which he received from defendants the money which the last statement asserted to be due to him. Aside from the fact that he made no objection to the further statements of account, there is direct evidence of his assent to their correctness. On the 5th day of June, 1890, he wrote the defendants a letter, in which he said:

“Please send us a check for $2,000, which will be a small advance. It will fake that to start us out. As near as I can tell, there is between $1,000 and $1,700 due us.”

Referring to the statements of account for the month of May, it appears that plaintiff’s commissions for April and May amounted to $2,770.17. These commissions were 2 per cent, of gross sales, including sales to Bauman Bros. And, further, that, upon the 26th of May, the plaintiff received from the defendants $1,000, leaving due him, according to the statement, a balance of $1,770, a little more than plaintiff’s estimate. Whether he objected to the accounts of February or March or not, he was concluded by the statement of account furnished on July 9th, to which he did not object, but, on the contrary, received payment of the balance shown to be due him; for that statement of account superseded those rendered before, and his acceptance of payment without objection amounted to an assent on his part, and made the accounts between them stated at that date. Clark v. Bank, 11 Daly, 239; Quincey v. White, 63 N. Y. 370; Knickerbocker v. Gould, 115 N. Y. 533, 22 N. E. 573; Jugla v. Trouttet, 120 N. Y. 21, 23 N. E. 1066. After the July statement, the defendants continued to render monthly statements down to November following, after which plaintiff was paid the amount appearing to be due to him by the last statement. He made no objection when he received it, nor did he object when the money was paid to him, nor at any time thereafter, so far as the record discloses, until the commencement of this action, in February, 1891.

The second cause of action was a claim for commissions upon goods sold to Deimel Bros., of Chicago, amounting to $5,986.25, in December, 1889. Deimel Bros, became insolvent immediately after the sale, and no part of the purchase price was paid. Plaintiff claims that, under the contract, he was entitled to his commissions, notwithstanding the sale which he made was to a failing firm, by reason,of which his principal lost the entire amount of the purchase price. As we view it, it is not for us to determine whether his contention be correct. In the very month of the sale (December, 1889) defendants, in their statement to plaintiff’s firm, which was received and retained without objection, deducted from the gross sales made by plaintiff’s firm, and which constituted the basis upon which their commissions were estimated in that statement, the amount of the sale to Deimel Bros. Thereafter, and prior to the commencement of this action, plaintiff made no objection to the statement in such respect, and for a period of 10 months continued to procure sales for the defendants, they submitting monthly statements of account to him, until November 20, .1890, when a final statement was made, and defendant paid the balance therein stated to be due. The cases we have already cited furnish adequate authority for the determination of the trial court that as to such item the account had become stated. Plaintiff’s exceptions should be overruled, and judgment ordered for defendants, with costs in both courts. All concur.  