Martyn v. J. E. Amold & Co.

Citations

• 36 Fla. 446

Syllabus

<p>Failure to attach cause of action to declaration not ground OF DEMURRER — ACCOUNT STATED — CONCLUSIVENESS OF — PROMISE TO PAY DEBT OF ANOTHER MUST BE IN WRITING — ACCOUNT RENDERED — WHEN BECOMES AN ACCOUNT STATED.</p> <p>1. The failure of the plaintiff to attach a copy of his cause of action to his declaration, can not be taken advantage of by demurrer to such declaration. The defendant’s remedy in such a case is to refuse to plead until such cause of action is filed.</p> <p>2. Where an account made out against a firm is presented to one of the partners in such firm, and is agreed to by him as being correct in the amount it represents to be due, such agreement, while it might be binding jointly upon the firm as an account stated to it, can not operate as a release of the joint liability of the firm thereon so as to authorize a suit upon said account against the partner individually and alone to whom the same was presented.</p> <p>3. A stated account never gives to a party claiming under it the benefit of an absolute estoppel. It establishes prima facie the correctness of the items, and unless this presumption is overcome by proof of fraud, mistake or error, it becomes conclusive; but that an account stated may be impeached for fraud, mistake or error, is well settled. The party impeaching it, however, has the affirmative of the issue and the burden of proof.</p> <p>4. A party can not by verbally agreeing to the correctness of an account stated to him, and verbally promising to pay the same, legally bind himself to pay any items of indebtedness included therein that are due by another, and for which he is in no way responsible except through such verbal promise. But when sued upon such account, as upon an account stated, he can show that items therein are the indebtedness of another for which he is not responsible; and as to such items the plaintiff can not recover unless he can show a promise in writing signed by the defendant to pay the same.</p> <p>Where an acc