
    LOUISE C. SOUTHWICK, Plaintiff and Appellant, v. GEORGE W. SOUTHWICK, Defendant and Respondent.
    A husband, having the custody of his wife’s money and property, rendered her an account, in writing, of moneys disbursed for her use, which she received and kept for some time without objection. Held, in a suit by the wife against the husband to recover her money, such account rendered was not conclusive or even prima facie evidence of the correctness of the items of the account. That the rule of “ account stated ” did not apply as against a wife in favor of her husband.
    Before Monell, Jones, and Fithian, JJ.
    
      [Decided February 12, 1869.]
    This case was tried before a referee.
    The parties to this action are husband and wife. The plaintiff was entitled, under the will of her father, to a certain share of his estate, in her own right, and free and clear from all inter ference of her husband. She gave a power of attorney to her husband, the defendant, to demand and receive the proceeds of her share of her father’s estate. The defendant was also one of the executors of the estate. It appeared on the trial, and was substantially conceded, that under this power of attorney, and with the knowledge and consent of the plaintiff, there had come to defendant’s hands on and previous to March 12, 1866, the sum of $14,148.24, the money of the plaintiff. The action is brought to recover this sum. The defendant was examined as a witness, and testified that on the 10th of April, 1866, on the demand of the plaintiff to be paid her money, the defendant rendered to the plaintiff, in writing, an account current of and concerning the moneys received by him, wherein he charged himself with the receipt of $13,932.24, and credited himself with divers payments of moneys and government securities paid to him and to divers other persons for her account and use, as he claimed, including tradesmen’s and medical bills, &c. The account thus rendered showed a balance due plaintiff of $116.89, which the defendant then paid by check, which, with the account, was received by plaintiff without objection. As to a large number of the items in the bill, the defendant gave no evidence to show, nor did the referee specifically find, that they were proper charges against the wife, except so far as the account itself had the effect of evidence. The referee held that the acceptance and retaining of this account by plaintiff, without substantial objection, until the commencement of the action, and no “ fraud, accident, or mistake ” being shown, it was conclusive upon the parties, and gave judgment for defendant, from which judgment plaintiff appeals.
    
      Mr. E. T. Gerry for appellant.
    The referee erred in permitting the account to be admitted in evidence. It was at best but a copy of certain entries made in certain books by a third party not in the employ of the plaintiff. As neither the boobs nor the bookkeeper were produced, the account was not admissible for any purpose. The referee erred in finding that the respondent, on the 10th of April, 1866, accounted with the appellant and paid her all the balance due, and that the defendant fully paid to or laid out and expended for the plaintiff the sums received by him for her use and benefit (Vanderhaven v. Mallory, 1 Comst., 452; Vale v. Dederer, 22 N. Y. R., 450; S. C., 18 id., 265). The referee erred in regarding the so-called account as conclusive on the appellant, when the evidence showed that the account itself was not a complete statement of all received and paid, but a continuation of a previous account . never furnished her; that „she had no opportunity of verifying either account, but was obliged to take the respondent’s word, and check for what was due her.
    
      Mr. Wm. H. Arnoux for respondent.
    The exceptions to the admission of the copy of the account in evidence were not well taken. The paper was not offered in evidence to prove the payments, but to prove the contents of a paper that had been delivered to the plaintiff and retained by her without objection. The defendant then proved by documentary and unimpeached and unchallenged testimony, that he had made the payments therein contained independently of that paper. By that paper and the testimony of the defendant alone were the receipts of the money established, and if the paper was improperly received, then the whole must be excluded. The payments so made were properly charged to the plaintiff against the moneys she had placed in the defendant’s hands (Blood v. Humphrey, 11 Barb., 660; Gale v. Dededer, 18 N. Y., 271; Wiles v. Peck, 26 id., 42).
   By the Court:

Fithian, J.

Without passing upon any of the other questions in this case, I think the referee erred in holding the account conclusive ” between the parties, under the circumstances in this case. The decision was correct in respect (to accounts stated between persons having no other than business relations (Phillips v. Belden, 2 Edward’s Chy. Rep., 1; Dow’s v. Durfee, 10 Barb., 213; Lockwood v. Thorn, 11 N. Y, 170 ; 1 Story’s Equity, sec. 526). The reason of the rule is that in the absence of any “ accident, fraud, or mistake,” the parties are presumed to stand equal, each knowing their respective rights and the true state of the accounts as against himself. And when a bill is rendered containing charges against a party, and he makes no objection after a reasonable time, it is a just inference that he admits their correctness. But I do not think this rule should be applied to married women or infants in cases arising between them and their husbands or guardians, because in those cases the parties do not stand equal, and are not presumed to have equal knowledge of their respective rights or of the true state of the accounts. I am aware that, as to married women, the tendency of recent legislation and adjudication has been to consider them, in respect to their separate property or business, entirely as femes soles. But I do not think the courts have gone or will go the length of abrogating all the rules of the common law in respect to the relations formerly existing between husband and wife, especially that rule based upon the difference of sex, which considers the wife, to some extent, the weaker and dependent being, and subordinates her in many respects to her husband, and, as án equivalent, charges him with the duty of caring for and protecting her in all her rights and interests, in person and property. A part of that duty is, in all matters where he assumes to act at all in her business, to see to it, so far as he can, that she does not, either expressly or impliedly, stipulate away any right or be placed in any position to be barred or concluded of any right she may have. It is not, in my opinion, consistent with this, common-law obligation and relation that the husband should be permitted himself to estop or conclude the wife by an account stated, or any implied admission in any matter where the husband has assumed to act for her in respect to her separate business or property. There may be cases that have gone that length, but none such were cited on argument; and I have found none, with such examination as I have been able to give the case. I am, therefore, unwilling to be the first to hold a feme covert concluded by any such rule.

The judgment should be reversed with costs, reference vacated, and a new trial granted.

Jones, J.

(concurring). The decision of this case in the court below was placed on the ground that the rendering of an account by a husband to his wife, and the retention thereof by the wife for a period of four months without objection, constituted an account stated between the parties.

Under the facts shown by the evidence in this case, I concur with my associates in the view that such rendering, retention, and non-objection did not constitute an account stated, for the reasons given in the leading opinion of the Court.

I am not, however, prepared to say that there may not arise cases where such rendering, retention, and non-objection, when taken in connection with other facts proved to ..exist, will constitute an account stated.

I concur in reversing the judgment, ordering a new trial and vacating the order of reference, with costs to the appellant to. abide' the event.  