This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The rule that acceptance is not established by showing silence on the part of the offeree must be qualified in the case of the account stated. By the custom of merchants it was the actual understanding that in transactions between merchants, including transactions between principal and agent the retention of an account which had been rendered if without objection on the part of the debtor, and if a reasonable time had elapsed since it was rendered, such silence is, at least, evidence tending to show that an agreement that such account was correct and that the debtor promised to pay the same.1 This rule was received first by courts of equity as a rule of law.2 It was said to be "the rule of the chancery courts and of merchants."3 This custom has now been received by the common law and equity courts as a rule of law; and while it still applies especially in the case of transactions between merchants, it applies in many jurisdictions to all business transactions in the course of which one party renders an account to another.4 In some jurisdictions it seems to be still limited to transactions between merchants.5 If the person to whom such account is rendered retains it beyond a reasonable time without objection, such conduct is evidence from which may be found the assent of the debtor to such account and his promise to pay it, so that an action may be brought upon such promise.6 He may, however, explain such delay,7 as by showing circumstances which made it impracticable for him to express his objections to the creditor until after the lapse of a reasonable time;8 and if such delay is thus explained in a satisfactory manner, it will be found that he did not assent to such account and did not promise to pay it.
4 Heagy v. Steinmark, - Colo. - , 180 Ac. 93.
1 Tickel v. Short, 2 Vea. 239; Sherman v. Sherman, 2 Vera. Ch. 276; Freeland v. Heron, 11 U. S. (7 Cranch.) 147, 3 L. ed. 297; Murray v. Toland, 3 Johns. Ch. (N. Y.) 569; Townes v. Birchett, 39 Va. (12 Leigh) 173.
2 Tickel v. Short, 2 Ves. 239; Sherman v. Sherman, 2 Vern. Ch. 276; Pratt v. Weyman, 1 McCord Eq. (S. Car.) *156.
3 Freeland v. Heron, 11 U. S. (7 Cranch.) 147, 3 L. ed. 297.
4 Crane v. Stansbury, 173 Cal. 631, 161 Ac. 7; Spellman v. Muehlfeld, 166 N. Y. 245, 59 N. E. 817.
5 Dodge v. Brown, 74 W. Va. 466, 82 S. E. 262; Fayette Liquor Co. v. Jones, 75 W. Va. 119, 83 S. E. 726.
6 United States. Wiggins v. Burk-ham, 77 U. S. (10 Wall.) 129, 19 L. ed. 884.
Arkansas. Memphis, D. & G. Ry. v. Atlas Powder Co., 185 S. W. 786 [memorandum opinion only, in 123 Ark. 620].
California. Crane v. Stansbury, 173 Cal. 631, 161 Ac. 7.
Illinois. State v. Illinois Central Ry. Co., 246 111. 188, 92 N. E. 814.
Minnesota. Western Newspaper Union v. Segerstrom Piano Mfg. Co., 118 Minn. 230, 136 N. W. 752.
Wisconsin. Jones v. DeMuth, 137 Wis. 120, 118 N. W. 542.
7 Wiggins v. Burnham, 77 U. S. (10 Wall.) 129, 19 L. ed. 884; Hollenbeck v. Ristine, 105 la. 488, 67 Am. St. Rep. 306, 75 N. W.' 355; Jones v. DeMuth, 137 Wis. 120, 118 N. W. 642.
The courts have differed with reference to the effect of such silence as proving assent. It has been said that such silence, if unexplained, amounts to an acceptance of the offer to regard such account as stated.9 If A has been in the habit, during a long period of time, of sending his account to B, upon which there was notice that after the lapse of a certain period of time A would charge interest, B's conduct in making general payment upon such account without objection to such charge of interest amounts to an acceptance of such offer; and B can be compelled to pay interest upon such overdue items,10 even if, by the terms of the original contract, interest was not to be charged.11 In some jurisdictions it has been said that such silence imposes upon the debtor the burden of proof, and that, in order to avoid the effect of an account stated, he must show that he did not assent.12 In other jurisdictions it is held that such silence is evidence from which acceptance may be found as a fact, but that it is not necessary that such finding should be made from such evidence.13 Whichever of these views obtains, we have here a case in which silence is at least evidence from which, without other or further evidence, acceptance may be found to exist.