An account stated becomes a new contract,1 or an admission of an existing liability,2 according to the emphasis placed on one or the other of these characteristics. Unless some recognized ground for attacking its validity can be shown, the parties are bound thereby.3

It is not necessary, on the one hand, for the creditor to prove the original items which were carried into the account stated.4 On the other hand, neither the debtor nor the creditor can avoid the effect of the account stated, either by refusing to pay the balance agreed to be due, or by refusing to accept the balance agreed to be due in full satisfaction of liability.5

In some of the earlier cases, language was used which seemed to indicate that the courts believed that an account stated was conclusive as between the parties.6 Probably this language, however, meant that in the particular case no sufficient ground for avoiding the effect of the account stated had been shown. At modern law it is very generally agreed that an account stated is not absolutely conclusive for all purposes,7 and that it does not present any of the elements of estoppel.8 An account stated may be attacked for fraud or mistake.9

22 Sherman v. Sherman, 2 Vern. 276.

23Tickel v. Short, 2 Ves. Sr. 239; Freeland v. Heron, 11 U. S. (7 Cranch.) 147, 3 L. ed. 297.

24 Wiggins v. Burkham, 77 U. S. (10 Wall.) 129, 19 L. ed. 884; Hollenbeck. v. Ristine, 105 Ia. 488, 67 Am. St. Rep. 306, 75 N. W. 355; Jones v. DeMuth, 337 Wis. 120, 118 N. W. 542.

25 Wiggins v. Burkham, 77 U. R. (10 Wall.) 129, 19 L. ed. 884.

1 Merchants' National Bank v. Car-michael, - Cal. - , 173 Pac. 999.

2 See Sec. 2617.

3Dolman v. Kaw Construction Co., 103 Kan. 635, 2 A. L. R. 67, 176 Pac. 145; Hallowell Granite Works v. Orleans, - - La. - , 80 So. 610; Fayette Liquor Co. v. Jones. 75 W. Va. 119. S3 S. E. 726.

4 Roy v. King's Estate, 55 Mont. 567, 179 Pac. 821; Fayette Liquor Co. v. Jones, 75 W. Va. 119, 83 S. E. 726.

5 Dolman v. Kaw Const. Co., 103 Kan. 635, 2 A. L. R. 67, 176 Pac. 145.

6Trueman v. Hurst, 1 T. R. 40; Holmes v. D'Camp, 1 Johns (N. Y.) 34, 3 Am. Dec. 293.

Since the existence of a valid obligation is necessary as the basis of an account stated,10 the debtor may attack an account stated on the ground that certain illegal items were included in such account stated.11 He may show that certain of the items were debts growing out of a gambling transaction,12 or that they were items growing out of the illegal sale of intoxicating liquor without a license,13 or that they were items of usurious interest.14 The effect of including in an account stated items growing out of contracts which are invalid as in violation of the Sunday statutes. depends upon the effect of such statute in such jurisdictions. In jurisdictions in which a Sunday contract is capable of ratification,15 the act of the parties in including an item growing out of a Sunday contract in an account stated, amounts to a ratification thereof.16 If a contract which is unenforceable by reason of the Statute of Frauds, has been performed by one party, and the amount due thereunder has been included in an account stated, the debtor can not thereafter attack such account stated on the ground that such account stated was unenforceable because of the Statute of Frauds.17 If the original contract remains executory, the amount which will be due thereunder on performance, can not be made an item of an account stated,18 although it might be possible that the statement of the account might set forth the original transaction in writing, and might be so signed as to make a sufficient memorandum.19 It has also been held that if an action is brought upon an account stated for money earned under a special contract, the defendant may show breach of such contract as a defense to such action,20 on the theory that this is in effect impeaching the account stated for mistakes and errors.21

7 England. Hardwicke v. Vernon, 4 Ves. Jr. 411.

United States. Standard Oil Co. v. Van Etten, 107 U. S. 325, 27 L. ed 538.

Colorado. Gutehall v. Cooper, 37 Colo. 212, 6 L. R. A. (N.S.) 820, 86 Pac. 125.

Illinois. State v. Illinois Central Ry., 246 111. 188. 92 N. E. 814.

Kentucky. Louisville Banking Co. v. Asher, 112 Ky. 138., 99 Am. St. Rep. 283. 65 S. W. 133.

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

Oregon. Haines v. First National Bank, 89 Or. 42, 172 Pac. 505.

Wisconsin. Segelke & Kolhaus Mfg. Co. v. Vincent. 133 Wis. 237, 11.1 N. W. 806.

8Lockwood v. Thorne, 18 N. Y. 285.

9England. Hardwicke v. Vernon, 4 Ves. Jr. 411.

United States. Wiggins v. Burk-ham, 77 U. S, (10 Wall.) 129, 19 L. ed. 884.

Colorado. Gutshall v. Cooper, 37 Colo. 212. L.. R. A. (N.S.) 820, 86 Pac. 125.

Montana. Johnson v. Gallatin Val-ley Milling Co.. 38 Mont. 83, 98 Pac. 883.

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

Oregon. Haines v. First National Bank, 89 Or. 42, 172 Pac. 505.

Wisconsin. Segelke & Kohlhaus Mfg. Co. v. Vincent, 135 Wis. 237, 116 N. W. 806.

10 See Sec. 2519.

11Rose v. Savory, 2 Bing. N. C. 146: Murphey v. Springs, 200 Fed. 372, 46 L. R. A. (N.S.) 539; Peeples v. Yates, 88 Miss. 289, 40 So. 996.

12Murphey v. Springs, 200 Fed. 372, 45 T,. R. A. (N.S.) 539.

13Melchior v. McCarty, 31 Wis. 252, 11 Am. Rep. 605.

14 Peeples v. Yates. 88 Miss. 289. 40 So. 996.

15 See Sec. 1038.

16Melchoir v. McCarty, 31 Wis. 252, 11 Am. Rep. 605.