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.
It is said that a statement of an account consists in the mutual examination of the claims of each other as between the parties and a mutual agreement between them as to the correctness or the disallowance of the items of their respective claims, and the striking of a balance between them.1
In order that an account may be stated, it is necessary in the first instance that there should be a presentation of what the law recognizes as an account.2 The mere statement by one party to the other of the amount of an unliquidated claim,3 such as an unliquidated claim in tort,4 can not be the basis of an account stated even if assented to. A mere memorandum of a debt can not be the basis of an account stated.5 A statement of an amount which is merely a matter of computation from the conceded facts,6 such as a statement of the amount of principal and interest which are due upon a negotiable instrument, together with the statement of payment of an additional sum so that the total will equal the amount of a judgment which is transferred in consideration of the amount thus stated,7 can not be the basis of an account stated.
7 21 Jac, I. C. 16. Sec. 111.
8 Toland v. Sprague, 37 U. S. (12 Pet.) 300. 9 L. ed. 1093; White v. Campbell, 25 Mich. 463.
9 See Sec. 2524.
10 See Sec. 2524.
11III Blackstone's Com., I62. For a discussion of the history and nature of the account stated, see White v. Campbell, 25 Mich. 463.
1 "In stating an account, two things are necessary: first, that there be a mutual examination of the claims of each other by the parties; and second, that there be a mutual agreement between them, as to the correctness of the allowance and disallowance of the respective claims, and of the balance, as it is struck upon the final adjustment of the whole account and demands on both sides. The minds of the parties must meet upon the allowance of each item or claim allowed, and upon the disallowance of each item or claim rejected. They must mutually concur upon the final adjustment, and nothing short of this in substance will fix and adjust their respective demands as an account stated." Lock wood v. Thorne, 18 N. Y. 285.
As in other cases of offer and acceptance,8 the statement must be so definite and certain that the acceptance thereof concludes a definite agreement between the parties.9 An offer by a principal to pay certain commissions when certain old machinery was sold by the principal and when he obtained therefrom the net amount due him on the transaction, is not sufficiently definite to be the basis of an account stated.10
2 Pudas v. Mattola, 173 Mich. 189, 45 L. R. A. (N.S.) 634, 138 N. W. 1052; Johnson v. Stilwell, - Or. - , 176 Pac. 123; Brauns v. Green Bay, 78 Wis. 81, 46 N. W. 889.
A monthly statement rendered by a factor to his principal is not such an account as can be the basis of an account stated. Newburger-Morris Co. v. Talcott, 219 N. Y. 505, 3 A. L. R. 287, 114 N. E. 846.
3 Pudas v. Mattola, 173 Mich. 189, 45 L. R. A. (N.S.) 554, 138 N. W. 1052; Johnson v. Stilwell, - Or. - , 176 Pac. 123; In re O'Bold, 221 Pa. St. 145, 70 Ail. 555; Brauns v. Green Bay, 78 Wis. 81, 46 N. W. 889.
4 Pudas v. Mattola, 173 Mich. 189, 45 L. R. A. (N.S.) 534, 138 N. W. 1052. 5 Sturm v. Boker, 150 U. S. 312, 37 L. ed. 1093.
"The account, in order to constitute a contract, should appear to be something more than a mere memorandum. It should show upon its face that it was intended to be a final settlement up to date. And this should be expressed with clearness and certainty." Coffee v. Williams, 103 Cal. 550, 37 Pac. 504.
6 Jasper Trust Co. v. Lamkin, 162 Ala. 388, 24 L. R. A. (N.S.) 1237 [sub nomine. Jasper Trust Co. v. Lampkin, 136 Am. St. Rep. 33, 50 So. 337].
7 Jasper Trust Co. v. Lamkin, 162 Ala. 388, 24 L. R. A. (N.S.) 1237 [sub nomine, Jasper Trust Co. v. Lampkin, 136 Am. St. Rep. 33, 50 So. 337].
"We think the principles are applicable to show that a mere calculation of the amount due on promissory notes can not merge the note into an account, stated. An account stated must still be an account, and the origin of the action shows that it was not intended to be applied to a case like the one now under consideration. The original action was called insimul com-putassent, which means 'they accounted together,' and it was averred 'that the parties had settled their accounts together, and defendant engaged to pay plaintiff the balance.' . Evidently, when there is no indebtedness except one or more promissory notes, the promisor is as firmly bound to pay the amount, which is definitely fixed by the note, as he could be by any implied promise; also there is no account for them to settle together. Each one with his pencil can ascertain at any moment just what is due, and the mere affirmation of what they both know and are already bound to can not form a new contract." Jasper Trust Co. v. Lamkin, 162 Ala. 388, 136 Am. St. Rep. 33, 24 L. R. A. (N.S.)
1237, 50 So. 337. 8 See Sec. 95 et seq.