Sec 777

It is no defence to a suit on an account stated that the debt was due only in equity. A trustee, for instance, may make himself liable on an account stated by stating his indebtedness on his trust receipts, though for these, independently of his admission, he could have been sued only in a court of equity.1 The same distinction applies to an indebtedness admitted at the close of partnership accounts.2

An account may be evidence in favor of party stating.

Account stated proved by parol.

No defence that indebtedness was merely equitable.

1 Symonds V. Gas Co., 11 BeaV. 283; Boardman V. Jackson, 2 Ball & B. 382; Lodge V. Prichard, 3 De Gex, M. & G. 906; Anding V. Levy, 57 Miss. 51; see Wh. on EV. sec 1140.

2 Wh. on EV. sec 1122 et seq., 1133; Moreland V. Isaac, 20 BeaV. 392; Currier V. R. R., 31 N. H. 209; see Gilson V. Stewart, 7 Watts, 100.

3 Singleton V. Barrett, 2 C. & J. 368; Newhall V. Holt, 6 M. & W. 662; Lock-wood V. Thorne, 18 N. Y. 285; Champion V. Joslyn, 44 N. Y. 656; Stowe V. Sewall, 3 St. & P. 67.

4 Wheatley V. Williams, 1 M. & W.

533; Grant V. Vaughan, 3 Burr. 1516; Burmester V. Hogarth, 11 M. & W. 97; Bowers V. Hurd, 10 Mass. 427; Fisher V. Fisher, 98 Mass. 303; Mowry V. Bishop, 5 Paige, 98.

5 Douglass V. Holme, 4 P. & D. 685; Jacobs V. Fisher, 1 C. B. 178; Wilson V. Wilson, 14 C. B. 616; Fesenmayer V. Adcock, 16 M. & W. 449; Curtis P. Rickards, 1 M. & Gr. 47.

6 Supra, sec 684; Leake, 2d ed. 153, 935; Owen V. Homan, 3 Mac. & G. 407; Price V. Moulton, 10 C. B. 574.

7 Hoyt V. Wilkinson, 10 Pick. 31.

Sec 778

Even though the account was settled definitely between the parties, it does not conclude them, but parol, or other extrinsic evidence, is admissible to show that it was based on error,3 and that there was no actual indebtedness from the defendant to the plaintiff,4 or that there was no consideration, or that the consideration was illegal.6 Until final settlement such accounts are always open to correction; and even after settlement on proof of mistake.6 To the rule, however, that an account stated is only prima facie proof, there is an exception in those cases in which there is an estoppel based on mutual concessions, or some new consideration which it would be contrary to good faith to impeach. But a stated account not sustained by such new consideration or estoppel may be impeached for mistake or error, whether of omissions or of entry.7

Sec 779

To sustain an implied promise of this class, the admission must be specific. It is not enough for a party to admit a vague indebtedness,8 or to say that he thinks he has received the money litigated;9 or to say that some money is due without designating the amount or acceding to the plaintiff's desigation.1 Mere admission of reception without recognition, either directly or indirectly, of indebtedness, will not sustain the implication of a promise.2 But the allegation of account stated was held to be sustained where a debtor, in answer to an account, inclosed an order for money, and promised to pay the remainder next week;3 where certain items of an account were passed over without objection, to one item alone objection being made;4 and where the defendant handed to the plaintiff a memorandum of items of account, to which was attached a promise to pay the plaintiff a specified amount, being the value of a protested bill, it being further stated that the money was to be paid out of the proceeds of certain provisions and lumber.5 sec 780. From the account stated, in the sense just given, is to be distinguished an account settled between parties in which the debits are set off against the credits, and in which a balance is struck. In such cases the plaintiff suing for the balance elects to treat his claim as pro tanto extinguished by the claim set off on the other side.6 But when the account is not settled between the parties, and the plaintiff merely puts in evidence the defendant's account, this does not preclude the plaintiff from disputing the defendant's entries in his own favor.7

Account stated not conclusive.

Admission must be specific.

1 Pardoe V. Price, 16 M. & W. 456; Roper V. Holland, 3 A. & E. 99; supra, sec 726.

2 Foster V. Allanson, 2 T. R. 479; Wray V. Mileston, 5 M. & W. 21; see supra, sec 722 et seq.; infra, sec 807.

3 Wh. on EV. sec 1133; 1 Story, Eq. Jur. sec 524; Thomas V. Hawkes, 8 M. & W. 140; Dails V. Lloyd, 12 Q. B. 531; Harden V. Gordon, 2 Mason, 541; Perkins V. Hart, 11 Wheat. 256; Nichols V. Alsop, 6 Conn. 477; Young V. Hill, 67 N. Y. 162; Barger V. Collins, 7 H. & J. 213; Carroll V. Ridgaway, 8 Md. 328; Goodin V. Armstrong, 19 Ohio, 44; Kirby V. Watt, 19 Ill. 393.

4 Gough V. Findon, 7 Ex. 48; Lemere V. Elliott, 6 H. & N. 656; Petch V. Lyon, 9 Q. B. 147; Perkins V. Hart, 11 Wheat. 237; Young V. Hill, 67 N. Y. 162; Halleck V. State, 11 Ohio, 400;.

Gradwohl V. Harris, 29 Cal. 150; Mur-dock V. Finney, 21 Mo. 138; see Hoyt V. McLaughlin, 52 Wis. 280.

5 Kennedy V. Brown, 13 C. B. N. S. 677.

6 Wh. on EV. sec 1021, 1028, 1123.

7 See cases cited supra, sec 171 et seq., 205 et seq.; Wiggins V. Burkham, 10 Wall. 129; Lockwood V. Thorne, 18 N. Y. 292; Hutchinson V. Bank, 48 Barb. 324; Ruffner V. Hewitt, 7 W. Va. 608; Warner V. Myrick, 16 Minn. 91; Wharton V. Anderson, Sup. Ct. Minn. 1882.

8 Wh. on EV. sec 1089; Green V. Davies, 4 B. & C. 235; Lane V. Hill, 18 Q. B. 262; Chambers V. Claws, 21 Wal. 317; Clarendon V. Weston, 16 Vt. 332; Gibney V. Marohey, 34 N. Y. 301.

9 Hughes V. Thorpe, 5 M. & W. 656; Smith V. Jones, 15 Johns. R. 229.

Account settled between parties establishes only balance due.

1 Teal V. Anty, 2 B. & B. 99.

2 Tucker V. Barrow, 7 B. & C. 623.

3 Peacock V. Harris, 10 East, 104; see Vinal V. Burrill, 16 Pick. 401; Sugar V. Davis, 13 Ga. 462.

4 Chisman V. Count, 2 M. & G. 307; Wh. on EV. sec 1140.

5 Montgomerie V. Ivers, 17 Johns. 38; and see generally Claire V. Claire, 10 Neb. 54.

6 Leake, 2d ed. 122; Ashby V. James, 11 M. & W. 542; Callander V. Howard, 10 C. B. 290; Laycock V. Pickles, 4 B. & S. 497.

7 Rose V. Savery, 2 Bing. N. C. 145; see Wh. on EV. sec 1133.