Byrne Bros. v. Barnekow

176 N.W. 69, 170 Wis. 588, 1920 Wisc. LEXIS 41

• Court: Wisconsin Supreme Court
• Decided: February 10, 1920
• Status: Published

Opinion

Eschweiler, J.

For several years prior to February, 1917, the plaintiff company had been doing cement and . concrete work in and about the basements of structures which were being erected by the defendant, and payments were made from time to time by defendant.

In February, 1917, plaintiff rendered an itemized statement of its charges for such work and' materials furnished and of the'payments or credits on the same for the period from January 1, 1915, starting with a then balance claimed to be due from defendant of $148.12.. The debit items in such statement aggregated over $11,000, and the balance after deducting credits was $1,842.32.

Statements of account were subsequently rendered by plaintiff to defendant under dates of May 1, July 1, and December 1, 1917, showing subsequent charges and credits, each of such statements carrying forward the balance that appeared on the preceding one.

A final statement was rendered December 31, 1917, starting with the debit of $478.26 from the statement of Decem- . ber 1st, and giving credit for an item of $29.20 and another of $78.22 as on account of two transactions that were included in the statement of February 1, 1917.

An examination of the testimony convinces us that where, as here, there were disputed items, concessions made, and a final batanee struck, the court might properly find an account stated. Segelke & Kohlhaus M. Co. v. Vincent, 135 Wis. 237, 240, 115 N. W. 806; 1 Corp. Jur. p. 688; Hoover-Dimeling L. Co. v. Neill, 77 W. Va. 470, 87 S. E. 855; Gwathmey v. Burgiss, 104 S. C. 280, 88 S. E. 816.

Although the trial court did not expressly find that there was an express promise on the part of the defendant to pay-such agreed balance, though there was testimony that such a promise was made, still there arises upon such a situation an implied promise to pay. Rose v. Bradley, 91 Wis. 619, 625, 65 N. W. 509.

No valid reason is therefore disclosed for a-reversal of the judgment of the civil court, and it must stand.

By the Court. — Order of the circuit court reversed, and the judgment of, the' civil court affirmed.