
    Lockwood and others against Thorne and others.
    An account stated is conclusive upon the parties, unless impeached for fraud or mistake.
    To make an account stated, it is sufficient that the account has been examined and assented to as correct by both parties. This assent may be express, or implied from circumstances.
    Whether on a given state of facts the transaction constitutes a stated account is a question of law.
    As a general rule, where an account showing a balance is duly rendered, he to whom it is rendered is bound, within a reasonable time, to examine the same and object if he dispute its correctness.
    If he omit to do so, he will be deemed, from his silence, to havé acquiesced, and be bound by it as an account stated.
    Accordingly, where T. & Co., a firm in New-York, on the first of February, 1847, pursuant to custom, rendered to L. & Co.-, a firm in Ulster county, an account of their mutual .dealings, containing a charge against the latter of $880.48, and showing a balance due them of $5,623.41; and L. & Co. on the 17th of February drew on T. & Co. for an amount corresponding with this balance, which was paid, and made no objection to the account till November following, when they brought a suit to recover the amount of the $880.48, claiming that it was improperly charged to them; Held, that they could not recover without proving affirmatively mistake or fraud in the account rendered.
    Appeal from the judgment of the supreme court sitting in the third district. The action was tried before referees. On the trial it appeared that the plaintiffs, who were tanners in Ulster county, and the defendants, being leather merchants doing business in Sew-York, entered into a contract in March, 1844, by which the plaintiffs agreed to receive from the defendants, tides, and return them tanned into leather, at a specified price per pound, to be paid by defendants; among other things, the plaintiffs agreed that the hides should “be tanned in a good and workmanlike manner, and made to gain in weight as muck as good tanners make from the same description of hides that the plaintiffs received hides and returned the leather under the contract, down to January, 1847; that defendants on the first of February, in each year, were accustomed to make up the accounts between the parties, and transmit the same to the plaintiffs, and that on or about the first of February, 1847, they made up an account between them and the plaintiffs, of the transactions of 1846, and sent a copy to the latter by mail. In this account the plaintiffs were charged, for deficiency in gain of weight in tanning” sundry hides a certain number of pounds, at a price per pound specified, the sum of $880,48, as one item; the account contained a large number of debits and credits, and showed a balance due the plaintiffs of $5623,41. After receiving this account, and on the 17th of February, 1847, the plaintiffs made their draft on the defendants, payable at sight to the order of Jos. S. Evans, cashier, for the sum of $5623.41, being the same as the balance shown by said account, which draft was paid by the defendants. The plaintiffs made no objection to the account, or any item of it, at or prior to drawing the draft, or at any time prior to commencing the suit. The draft did not refer to the account in terms, and by it the defendants were requested to charge the amount thereof to the account of the plaintiffs. In November, 1847, this suit was commenced: the declaration contained counts upon the contract, and also the common counts for work and labor. The only matter in dispute upon the trial was, whether the plaintiffs were properly chargeable under the contract, with the said sum of $880.48, for deficiency in weight. Bach party gave a good deal of evidence on this point.
    The defendants also insisted that the plaintiffs could not recover, on the ground that the account, including the item in question, had been stated and settled between the parties, and that it could not be opened without proof of fraud or mistake. The referees made a report in favor of the plaintiffs for the amount of said sum of $880.48, with interest. The supreme court, on a case made by the defendants, denied a motion to set it aside, and gave judgment for the plaintiffs. A statement of facts found by the court was incorporated with the case, in the judgment roll, and the defendants appealed to this court.
    
      L. Tremain, for the appellants.
    
      H. Hogeboom, for the respondents.
   Parker, J.

By the contract between the parties, the plaintiffs agreed that the hides received from the defendants should not only “ be tanned in a good and workmanlike manner,” but also that they should be “ made to gain in weight as much as good tanners make from the same description of hides.” The defendants allege that the plaintiffs failed to keep the latter part of this stipulation, and that the referees erred in not finding against the plaintiffs on that issue. However preponderating may be the weight of evidence against the finding of the referees on this point, and I think it was so, it is not a matter subj ect to ■ review in this court. It was a question of fact, and if it has been erroneously determined by the referees, the defendants can have no redress beyond the power of the supreme court to set aside the report as against the weight of evidence.

The second point made by the defendants is that the referees erred in not giving legal effect to an account stated and settled between the parties, and in permitting the same to be opened without proof of fraud or mistake: and this presents properly a question of law for our decision: for whether on a given state of facts the transaction amounts to an account stated is a question of law and not of fact. (Toland v. Sprague, 12 Peters, 330.) In accordance with the established custom of the defendants to make up the accounts between them and the plaintiffs on the first day of February in each year, and to transmit the same to the plaintiffs, an account between the parties was made up and sent to the plaintiffs by mail on or about the first day of February, 1847, showing a balance due to the plaintiffs from the defendants amounting to the sum of $5,623.41. In that account the plaintiffs were charged for deficiency in gain of weight on certain hides particularly referred to, the sum of $880.48. After receiving said account and on or about the 17th day of February, 1847, the plaintiffs drew upon the defendants at sight for the amount of the said balance shown by the account, without objection to any part thereof) and their draft for the same was duly paid by the said defendants. The matter thus rested till November, 1847, when the plaintiffs brought this action to recover the $880.48 charged in the account for the deficiency in weight.

It is not necessary in order to make a stated account that it should be signed by the parties. It is sufficient if it has been examined and accepted by both parties. And this acceptance need not be express; but may be implied from circumstances. (1 Story’s Eq. Jur. § 526.) Keeping it any length of time without objection binds the person to whom it is sent. (Willis v. Jernegan, 2 Atk. 251.) Between merchants at home, an account which has been presented and no objection made thereto after the lapse of several posts, is treated, under ordinary circumstances, as being by acquiescence a stated account. (Sherman v. Sherman, 2 Vern. 276 ; 1 Stor. Eq. Jur. § 526.) Between merchants in different countries a longer time is given, but if no objection be made, after several opportunities of writing have occurred, it is considered an acquiescence. (2 Atk. 252; 2 Ves. 239 ; 3 John. Ch. R. 560, 575; 7 Cranch, 147.) What is a reasonable time is to be judged of by the habits of business at home and abroad. (1 Story's Eq. Jur. § 526.) The law was very fully stated by Collier, Ch. J. in Langdon v. Roane's Adm'r, (6 Ala. R. 518,) as follows : It is said to be a general rule, that where an account is made up and rendered, he who receives it is bound to examine the same or to procure some one to examine it for him. If he admits it to be correct, it becomes a stated account and is binding on both parties the balance being the debt which may be sued for and recovered at law upon the basis of an insimul computassent," “ So if, instead of an express admission of the correctness of the account, the party receiving it keeps the same by him and makes no objection within a reasonable time, his silence will be construed into an acquiescence in its justness, and he will be bound by it as if it were a stated account. (Philips v. Belden, 2 Edw. Ch. 1.) In fact, the rule as laid down by the authorities would seem to be, that if one does not object to a stated account which has been furnished him, within a reasonable time, he shall be bound by it, unless be can show its incorrectness. (Murray v. Toland, 3 John Ch. 569; Wilde v. Jenkins, 4 Paige, 481.)” In stating the law as above extracted, the learned chief justice followed the decision in the case of Philips v. Belden, (2 Edw. Ch. 1,) where the same principles of law are clearly stated.

If this case rested upon the question of reasonable notice, I cannot doubt but the lapse of nine months after the receiving of the account before the commencement of the action, there having been made in the mean time no objection or complaint, would have been abundant to authorize the legal inference of acquiescence ; particularly as the proximity of the parties to each other secured them a daily opportunity of communication by mail, and the nature of their business transactions must have brought the plaintiffs frequently during that time to the city, where the business of the defendants was transacted.

But this case does not rest on mere inference or acquiescence from lapse of time. There is affirmative evidence of such acquiescence. Within a few days after the account was received by the plaintiffs they drew on the defendants for the balance stated; not a general draft in round figures, but a draft for $5623.41, the precise balance of the account as rendered. There being no other accounts between the parties, a draft in that form is as clearly indicative of an intention to draw the balance as such, as if. those terms had been inserted in the draft. Here is then affirmative and I think conclusive evidence that, with the account before them, in which among other items the deduction for loss of weight was particularly stated, the plaintiffs agreed to it as a stated account, by drawing for and receiving the precise balance admitted. We are not without authority in deducing such a legal assent from the act of the plaintiffs. This precise question arose in Toland v. Sprague, (12 Peters, 300-334,) and Mr. Justice Barbour, in giving the opinion of the court, said, “We agree that the mere rendering an account does not make it a stated one ; but that if the other party receives the account, admits the correctness of the items, claims the balance or offers to pay it, as it may be in his favor or against him, then it becomes a stated account. The plaintiff having received it, having made no complaint as to the items or the balance, but on the contrary, having claimed that balance, thereby adopted it and by his own act treated it as a stated account.” (See also Murray v. Toland, 3 John. Ch. R. 569.)

The transaction then being an account stated, is conclusive upon the parties unless the plaintiff affirmatively shows fraud or mistake. The law is stated in Philips v. Belden, (2 Edw. Ch. R. 1,) that if either party attempts to impeach 'the settlement and to open the accounts for re-examination, either wholly or in part, and which can only be done upon the ground of fraud, mistake or error, the burthen of proof rests upon the party impeaching, and he must prove the fraud or point out the error or mistake on which he relies. Here no fraud or mistake was pretended. It was merely an attempt to litigate an item once settled, without a shadow of pretence that there had been any thing unfair in the settlement, or any misapprehension in regard to it.

It was well said by Chief Justice Marshall, in Chappelanie v. Dechenaux, (4 Cranch, 306,) where an attempt was made to open an account stated, “ No practice could he more dangerous than that of opening accounts which the parties themselves have adjusted, on suggestions supported by doubtful or by only probable testimony.”

On the evidence before the referee, therefore, the defendants were entitled to judgment, and the judgment of the supreme court ought to he reversed and a new trial ordered.

Johnson, J., also delivered an opinion for reversal.

Gardiner, Ch. J., Denio and Edwards, Js., concurred.

Ruggles, J., was in favor of affirmance.

Judgment reversed.  