
    FREDERICK R. SCHETTLER, Plaintiff and Appellant, v. LAWRENCE S. SMITH, Defendant and Respondent
    One tenant in common received all the rents and profits of the estate, and accounted to his co-tenant for her share thereof, and on one occasion had accounted and credited, and paid to his co-tenant, as her share, a larger amount than she was entitled to. Such an account and payment being voluntary and without any mistake of fact, on the part of the person making the same, does not operate as an account stated and estop the latter from going behind it, except for fraud or mistake, nor do the facts justify the theory that such an overpayment constitutes a debt between the tenants, that must be alleged and set up in an action brought for an accounting, as a counterclaim, on the part of the tenant making the same. In the final accounting between the tenants, the tenant receiving the rents should be allowed for all payments made to his co-tenant as a part of the common fund, and although at a stated time he had accounted for and paid more than he was liable to "pay, or in excess of the precise sum due, it must be considered as a payment on account, and should be pleaded and proved as such.
    Before Monell and Spencer, JJ.
    
      Decided December 31, 1871.
    Appeal from a judgment entered upon the report of a referee.
    The parties were the owners, as tenants in common, of certain real estate in this city.
    The complaint alleged that the defendant had received the rents and profits of the estate and had not accounted to the defendant for any portion of it. The answer averred that the defendant had over-paid the plaintiff’s testator and devisor, on account of such rents.
    
      The action was tried by a referee, who found, amongst .others, the following facts :
    That on February 22, 1868, Julia Smith died without issue and intestate.
    That on February 6,1867, Cornelia H. Smith, having previously married the plaintiff, died, leaving a last will, whereby she devised all her estate to the plaintiff, and appointed Timothy 0. Howe executor thereof.
    That on January 27, 1869, the will was proved, and Howe having failed to qualify as executor, letters of administration, with the will annexed, were duly issued to the plaintiff.
    That the defendant received the rents of the premises since the month of May, 1862,' to August 1, 1869, amounting in the whole to seven thousand five hundred dollars, and paid on account of taxes, repairs, and ■ other expenses of the premises during the same period, the sum of three thousand one hundred and eighty dollars and thirty-five' cents, leaving the net rents amounting to four thousand three hundred and nineteen dollars and sixty-five cents, of which the. plaintiff would have been entitled to one-third as the devisee and representative of Cornelia H. Smith; but the defendant had in the lifetime of the said Cornelia H. Smith, to wit, in the year 1866, largely over-paid her the portion of rents to which she was entitled, whereby Cornelia H. Smith became indebted to the defendant; and that there is nothing due on account thereof by the •defendant to the plaintiff, either individually or as administrator of Cornelia H. Smith.
    That the defendant, on or about January 1, 1866,. rendered an account of moneys received and paid for her to Mrs. Schettler, wife of the plaintiff, in which,. among other credits, he credited her with two thousand and seventy-five dollars, as her share of rents of the property in the complaint mentioned up to May 1,1865, and showing a balance of three thousand two hundred and ninety-nine dollars and seventy cents due to her, and the balance of account was paid to Mrs. Schettler in conformity to said statement, and-by her -received.
    That the account was accepted by Mrs. Schettler.
    That there was no evidence that the account ever had been objected to by the defendant, or by Mrs. Schettler or her representatives.
    That the account was rendered and money paid under no mistake of fact on the part of the defendant, and at the time of rendering the account it was stated to Mrs. Schettler on the part of defendant that it was an over-payment.
    That the defendant promised by his letter, written May 4, 1865, that Mrs. Schettler should be allowed interest on all her moneys in the defendant’s hands.
    The referee decided as matter, of law:
    That the defendant was not estopped in this action by the rendering and settlement of the account aforesaid, from showing that the above-mentioned sum of two thousand and seventy-five dollars exceeded the share of the rents to which Cornelia H. Schettler was entitled.
    That the defendant was entitled to judgment for the dismissal of the complaint, with costs.
    On the trial the defendant" put in evidence an account made up to May 1, 1865, in which Mrs. Schettler was credited with two thousand and seventy-five dollars, as her share of the rents, and showing a balance of three thousand two hundred and ninety-nine dollars and seventy cents due to her, which balance the defendant paid to her, about-January, 1866.
    The whole amount received to August 1, 1869, the time the suit was brought, was seven thousand five hundred dollars, leaving a balance, after deducting taxes, &c., of four thousand three hundred and nineteen dollars and sixty-five cents, the one-half of which was less than the .sum which had previously been paid to Mrs. Schettler; thus creating what was the over-payment.
    It was proved that the defendant sent a Mr. Cockroft to Mrs. Schettler with a check for the balance paid in January, 1866. The latter testified: I called on her in January, 1866, at Irving House, Twelfth-street, Hew York. She told me she wanted to go to Europe, on account of her husband’s health. She wished I would see her brother, the defendant, and get him to render her a statement. I went down to defendant’s store and he handed me that account. I took it to her. I told her that was the account her brother had given me, and he had given her. She looked over it and said that would not give her money to go to Europe with. I told her that her brother had advanced her more than she was entitled to on the rent account; that she-was only entitled to one-third. I afterwards saw Mr. Smith.
    Q. What request did she make of you, if any %
    
    A. She wanted to get more money, and asked me if I would not see her brother. I took her a letter of credit for three hundred pounds with letter of introduction, and delivered them to her. She said she was going on January 20, I believe, but could not, as her husband could not get his naturalization papers.
    ■ Q. Did you subsequently, at her request, obtain any money from Mr. Smitfi, the defendant %
    
    A. In February, at Ashland House, she requested me to call on her brother and get a check. I went to him ; then I went back to her and she told me to sign the receipts and get check. I got check; about three thousand three hundred dollars, as near as I can rémember, and signed receipt. I handed her the check, and she handed it to her husband.
    Q. When you stated to her that her brother had advanced to her more than due on the Henry-street property what did she say ?
    
      A. She said it was very kind of him.
    Being cross-examined the witness testified:
    I said the defendant had given her more than her share. The check and account were not given at the same time.
    The plaintiff requested the referee to find as facts:
    1. That the defendant is not entitled to go into an examination of the accounts prior to May 1,1865, of the rents in the complaint mentioned.
    2. That the defendant is chargable with interest on the amounts of the moneys in his hands from the date of their receipt.
    Which the referee refused.
    The plaintiff, having excepted, appealed from the judgment.
    
      Mr. Albert Stickney, for appellant.
    
      Mr. J. W. Fowler, for respondent.
   By the Court.—Monell, J.

It was objected on the trial that if the defendant had paid to Mrs. Schettler a greater sum than she was entitled to, as her share of the rents received by him, it could be made available, as a defense, only by way of a counter-claim ; and as no counter-claim was pleaded, all evidence in respect to such a payment was improper. It is now further objected, that the account of May, 1865, and the payment under it, having been voluntary, and made without any mistake of fact on the part of the defendant, it operates as an account stated, and estops the defendant from going behind it, except for fraud or mistake.

It is conceded, that taking the account of rents received during the whole period, from May, 1862, to August, 1869, and deducting the taxes, &c., paid by the defendant, and the sum paid to Mrs. Schettler in January, 1866, she has received a sum greater than her share of such rents. When the payment was made in January, 1866, Mrs. Schettler was told, and she distinctly understood, that it was more than her share, and she received it with the remark, that it was very kind of the defendant.

The objection, that this, at most, created a debt, due from Mrs. Schettler to the defendant, which would be the subject of a counter-claim, if so pleaded, does not seem to me to be well taken. As I view it, it was a payment made by one tenant in. common to his co-tenant, of a part of a common fund, which, unless estopped by his own acts, he had the right to bring into, and make a part of the final settlement between them. And, therefore, throwing the account of May, 1865, out of view, such payment created no debt, but was a payment on account, although in excess of the precise sum. due.

The defendant, therefore, correctly pleaded it as a payment.

The principle upon which an account stated is made conclusive against the party who receives it, is, that if he omits to object, he is deemed to acquiesce in its correctness ; and, hence, he is estopped from after-. wards questioning its accuracy. But the principle does not apply to the party who furnishes the account. As to him, it contains certain admissions and is generally regarded to be correct, but it is, nevertheless, open, to explanation for any omissions or mistakes.

There was nothing in the account itself, nor the circumstances under which it was rendered to Mrs. Schettler, which estopped the defendant from showing, that the balance appearing to be due to her, was in excess of her share. And it' seems to me, that when they came to have a final settlement, he had the right to show the over-payment previously made, as exhausting her share of the rents afterwards received.

It would be highly inequitable to allow the plaintifl’s testator to receive a voluntary over-payment which she had herself solicited and acknowledged, and then to disallow such payment, in the subsequent accounts between her and her co-tenant. The ground upon which the plaintiff seeks to exclude such payment, is too narrow and technical, and should be disregarded.

The effect which, perhaps, might otherwise be given to the account rendered by the defendant, as an account stated, is, in my judgment, entirely removed by the clear understanding of the parties, that the balance struck was in excess of the plaintiff’s share; and it is fair to presume, that they each intended and expected, that the defendant would reimburse himself from the future rents.

That he should be allowed to do so, is quite agreeable to equity and good conscience ; and I think the defendant should be satisfied that the over-payment is not now brought in, as a claim against him, or the estate which he represents.

The judgment should be affirmed.  