Merritt v. Meisenheimer

Citations

• 84 Wash. 174
• 146 P. 370
• 1915 Wash. LEXIS 766

Syllabus

<p>Account Stated — Pleading—Complaint. A plaintiff who elects to base his action upon an account stated must allege that the account was in fact agreed to, and it is not sufficient to allege merely collateral facts from which the ultimate fact may or may not follow.</p> <p>Appeal and Eeeok — Review—Amendment of Pleadings. The rule that the sufficiency of a complaint, curable by amendment, will not be inquired into on appeal is inapplicable where the trial court granted judgment on the pleadings on the ground that the answer presented no issue, when the basic error was that the complaint itself set forth no issuable fact.</p> <p>Account Stated — Rendition of Account — Assent — Pbesumptions — Bueden of Peoof. The mere rendition of an account by one party to another, although time may elapse without objection interposed, will not make it an account stated, when there is no other element of agreement thereto than merely the lapse of time, and no circumstances creating an estoppel; since reception of the account without objection operated only to shift the burden of proof to the debtor, and any presumption of assent on his part is rebuttable.</p> <p>Same — Estoppel to Dispute. Failure to dispute an account rendered during a period of nearly one year after the reception of the first statement would not work an estoppel, where the parties gave up nothing nor changed their legal position in any way by rendering their account.</p> <p>Same — Failube to Object — Reasonable Time.— Question foe Just. The trial court is not warranted in discharging the jury and holding that an account rendered is an account stated as a matter of law, because the debtor did not object within what the court deemed a reasonable time; but the presumption arising against the debtor from lapse of time must be measured with reference to the business capacity of the parties, their relative situation, dealings, intelligence, and all other circumstances; thus presenting a question for the jury as to wheth