A debtor to whom an account is presented has at least a reasonable time for investigation and examination,1 and if he objects to the account within a reasonable time, and at the first available opportunity,2 his failure to object to the account at the first moment that it was presented, does not convert the account into an account stated.

Whether silence on the part of the debtor for more than a reasonable time is to be regarded as an assent to the correctness of the account as a valid and subsisting legal obligation, is a question upon which there is a divergence of authority, although the divergence is probably rather apparent than real.3 In some jurisdictions language is used which seems to indicate that the courts feel that silence for more than a reasonable time is acquiescence in the account which converts the open account into an account stated.4 If the creditor has sent to the debtor his account for a number of times, upon which there is notice that after the lapse of a certain period the creditor would charge interest, the account of the debtor in making payments after receiving such notice without objection to a charge of interest is equivalent to an assent to such charge,5 even if the original account did not bear interest.6 Failure to object for two years,7 or even for two or three posts,8 has been said to turn an open account into an account stated.

In other jurisdictions language is used which seems to indicate that the court believes that silence on the part of the debtor is not of itself assent to the correctness of the account.9 In some cases it is said that silence for an unreasonable period of time casts the burden of proof upon the debtor if he wishes to show that he did not acquiesce in such account.10

1 Wilbur v. Win, 89 N. J. Eq. 278, 108 Atl. 995.

2 Wilbur v. Win, 89 N. J. Eq. 278, 103 Atl. 985.

3See Sec. 162.

4 England. Tickel v. Short, 2 Ves. 8r. 239; Sherman v. Sherman, 2 Vern. 276; In re Anglesey (1901), 2 Ch. 548.

United States. Perkins v. Hart, 24 U. S. (11 Wheat.) 237, 6 L. ed. 463; Wigging v. Burleham, 77 U. S. (10 Wall.) 129, 19 L. ed. 884; Standard Oil Co. v. Van Etten, 107 U. S. 325, 27 L. ed. 319.

Arkansas. Memphis, Dallas & Gulf Ry. v. Atlas Powder Co., 123 Ark. 620 (no opinion), 185 S. W. 786.

Iowa. Sullivan v. Herrick, 161 Ia. 148, 140 N. W. 359.

Minnesota. "Western Newspaper Union v. Segerstrom, 118 Minn. 230, 136 N. W. 752.

New Jersey. Wilbur v. Win, 89 N. J. Eq. 278, 103 Atl. 985.

New York. Spellman v. Muehlfeld, 106 N. Y. 245. 59 N. E. 817.

Virginia. Buchanan v. Higginboth-am, 89 Va. 278, 97 S. E. 340.

Wisconsin. Jones v. DeMuth, 137 Wis. 120, 118 N. W. 542; Miller v. Ryder, 145 Wis. 526, 130 N. W. 518.

5 In re, Anglesey (1901), 2 Ch. 648.

6 Milter v. Ryder, 146 Wis. 626, 130 N. W. 518.

7 Tickel v. Short, 2 Ves. Sr. 239.

8 Sherman v. Sherman, 2 Vern. Ch. 276.

9 Shaw v. Lobe, 58 Wash. 219, 29 L. R. A. (N.S.) 333, 108 Pac. 450; Merritt v. Meisenheimer, 84 Wash. 174, 146 Pac. 370; United Iron Works v. Rathskeller Co., 94 Wash. 67, L. R. A. 1917C, 445, 161 Pac. 1197.

There is probably, however, little, if any real conflict between these jurisdictions on matters of pure law, the conflict, if any, being as to the weight and sufficiency of the evidence in each particular case. Silence on the part of the debtor for more than a reasonable time is at least evidence from which his acquiescence may be inferred as a fact.11 In accordance with the usage of many courts, the term "presumption of fact" is frequently applied where-ever a fact may be inferred from the existence of other facts, but where such inference is not required by law to be drawn. The courts which use language to the effect that silence amounts to acquiescence probably have in mind the particular case which they are deciding, and they mean either that a finding of acquiescence is supported by sufficient evidence, or that upon the evidence of acquiescence thus offered the issue of acquiescence should have been submitted to the jury or to the court if the facts in that case are found by the court. On the other hand, the courts which use language to the effect that silence is not acquiescence, usually mean that in the particular case the surrounding circumstances justify a finding that the debtor did not by his silence intend to acquiesce in the correctness of the account.12

Language has been used which tends to restrict the doctrine of silence as acquiescence in an account to mercantile transactions,13

10 Freeland v. Heron, 11 U. S. (7 Cranch.) 147, 3 L. ed. 207; Fayette Liquor Co v. Jones. 75 W. Va. 119, 83 S. E. 726.

11 United States. Freeland v. Heron, 11 U. S. (7 Cranch.) 147. 3 L. ed. 207; Wiggins v. Burkham. 77 U. S. (10 Wall.) 129. 19 L. ed. 884.

Arkansas. Memphis, Dallas & Gulf Ry. v. Atlas Powder Co., 123 Ark. 620 (no opinion), 185 S. W. 786.

California. Crane v. Stansbury. 173 Cal. 631, 161 Pac. 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.

New York. Murray v. Toland, 3 Johns. Oh. (X. Y.) 569.

Virginia. Townes v. Birchett, 39 Va. (12 Leigh) 173

Wisconsin. Jones v. DeMuth, 137 Wis. 120, 118 N. W. 542.

12 "As the omission to object to the account rendered, raises merely an inference that the party is satisfied with it. and that he means to have his silence understood as an expression of his concurrence therewith, any circumstances calculated to rebut such inferences, or to raise counter-inferences, are clearly competent evidence to be submitted to the jury, in order that, with a knowledge of all the circumstances of the case, they may form their conclusion of the actual intention of the parties." Lockwood v. Thome, 18 N. Y. 285.

13Tickel v. Short, 2 Ves. Sr. 239; Sherman v. Sherman, 2 Vern. Ch. 276; Freeland v. Heron, 11 U. S. (7 Cranch.) 147. 3 L. ed. 297.

and to courts of equity.14 Even in recent cases language is found occasionally which seems to imply that this rule has especial application in mercantile transactions.15 The rule that silence on the part of the debtor implies acquiescence in the account is said to be "peculiarly applicable as between merchants," 16 or between a merchant and a customer.17 In most jurisdictions, however, this rule is applied to all business transactions, in the course of which one party renders an account to another.18

It is in cases in which silence is regarded as an acquiescence in the account that the necessity of showing that the account was in fact rendered to the debtor, is clearest.19 "Considering the origin and nature of the rule, I think a person who has chosen to hold an equivocal position in such a case, is not at liberty to assert the rights which pertain to a definite and decided one. He ought not to be allowed, at his election, to turn his own considerate inaction and reticence into a positive admission in his own favor, to serve as the very basis of his defense under the statute. When he claims the benefit of the statute on the ground that the account sued on has been converted into a stated one. through his assent to it as rendered to him, it is not enough to substantiate the defense, that there is no evidence as to whether he objected or not, nor is it sufficient to sustain such a defense, to prove, that upon and after the exhibition of the account, he remained perfectly passive. He must go further. He must show some word, or act, marking or implying that he assented to the account. There is no hardship in this. If the party receiving the account is willing to consider it as correct, and means that it shall be so regarded on his side, so that he may be enabled to assert the fact as against the other party, it will be easy for him to manifest his assent in some positive and unequivocal manner. Any other rule would lead to much duplicity and injustice."20

What amounts to a reasonable time depends upon all of the facts and circumstances of the case.21 At one extreme it has been said that if the merchants are in correspondence, a failure to object to an account for more than the second or third post, is to be regarded as an allowance of the account.22 At the other extreme it has been said that if the merchants are in different countries, a delay of two years converts the current account into a stated account.23

14 Pratt v. Weyman, 1 McCord Eq. (S. Car.) 156.

15 Dodge v. Brown, 74 W. Va. 466, 82 S. E. 262; Fayette Liquor Co. v. Jones, 75 W. Va. 119, 83 S. E. 726.

16 Fayette Liquor Co. v. Jones, 75 W. Va. 119, 83 S. E. 726.

17 Buchanan v. Higginbotham, - Va. - , 97 S. E. 340.

18 Crane v. Stansbury, 173 Cal. 631, 161 Pac. 7; Spellman v. Muchlfeld, 166 N. Y. 245, 59 N. E. 817.

19 United Hardware-Furniture Co. v. Blue. 59 Fla. 419, 35 L. R. A. (N.S.) 1038, 52 So. 364.

20 White v. Campbell, 25 Mich. 463.

21 See on this question, Sherman v. Sherman, 2 Vera. 276; Tickel v. Short, 2 Ves. Sr. 239; Freeland v. Heron, 11 U. S. (7 Cranch.) 147, 3 L. ed. 297; Wiggins v. Burkham, 77 U. S. (10 Wall.) 129, 19 L. ed. 884.

Even in jurisdictions in which an unexplained delay in objecting to an account is said to amount to an acquiescence therein, the debtor may avoid such effect of his acquiescence by showing reasonable and proper explanation for his delay.24 He may show that circumstances made it impracticable for him to interpose objections to the account until after the lapse of a reasonable time.25