Holmes v. Potts

319 P.2d 232, 132 Mont. 477

• Court: Montana Supreme Court
• Decided: November 25, 1957
• Docket: 9378
• Status: Published

Opinions

MR. JUSTICE CASTLES:

This is an appeal from a judgment on a verdict, a new trial having been denied. Hereafter the parties will be referred to as they appeared in the trial court.

The judgment was for the plaintiff in the amount of $6,000, with interest from February 15, 1949. The action was filed upon an account allegedly stated on that date. The plaintiff’s complaint recited that the defendant was indebted to her for services which she later testified were rendered as part time bookkeeper for defendant over some seven years, followed by more than two years of full time secretarial assistance in defendant’s office, there being no dispute as to this latter period.

Plaintiff’s complaint also recited that a wage account was arrived at, and then stated, between plaintiff and defendant on the above date; that by this calculation defendant owed plaintiff $8,400 in back wages as of the close of the prior year; that up to the time plaintiff filed her action, defendant had made only two payments on this past due wage account, $1,000 in June 1950, thirteen months after the account allegedly was stated, and an additional $1,400 the following March, a month after plaintiff’s employment ended and two months before plaintiff filed suit. Plaintiff treated these payments, and the time the alleged statement of the account had been in defendant’s possession, as an admission that the account had been stated. We shall refer to these two points at the conclusion of this opinion.

Defense was a denial of an account stated. The answer admitted plaintiff’s employment, but alleged that any back wages still owing were part of a running account between the parties, with offsetting credits owing to defendant, leaving a net total balance upon a total reckoning of all accounts between plaintiff and defendant of only $495.35 still due. This the defendant agreed to pay. It is observed that the answer did more than just generally deny an account stated. It affirmatively pleads a running account. The reply in turn denies the running account.

Defendant categorically denied that he had ever agreed to state any account with plaintiff. At trial defendant unsuccessfully offered testimony to prove that the writing plaintiff introduced as the prepared stated wage account was prepared for an entirely different purpose. It was also offered to prove that the discrepancies implied by defendant had existed between plaintiff’s part time pay and employment, and the total balance plaintiff claimed still due her, which facts made it improbable that defendant would have stated any account with plaintiff on plaintiff’s figures. The trial court treated the defendant’s answer as only a plea of general denial, and the court refused to admit this testimony. Whether this was error is the problem of this appeal.

As to how the account had been stated, plaintiff testified that she met defendant at his office the evening of February 15, 1949, and discussed her wages paid and unpaid from the start of her employment in June, 1941, through December, 1948, during which time, except late in 1948, no wage payments to her had been made; that plaintiff made a work sheet and then gave this work sheet to defendant, who wrote in the amounts to be set down as still owing for the years 1943 through 1948; that plaintiff thereupon added the credits for all amounts paid, after which defendant subtracted these credits and added up the amount of the wages still due, the total coming to $8,400; and, finally, that plaintiff then took all the figures, transcribed them to- another sheet of paper, destroyed the work sheet, gave the transcribed original to defendant, and kept the copy.

Defendant’s testimony confirmed that he was present on February 15, 1949, as plaintiff alleged. However defendant insisted he was not present to state a wage account with plaintiff, but to demand that plaintiff complete, that night and without further delay, information for an audit required about defendant’s business and needed the following day under a deadline in litigation. It is assumed this litigation did not involve plaintiff, but what it did involve does not appear. Defendant denied all details of plaintiff’s testimony, which by plaintiff’s interpretation supported her claim that the wage account had been stated.

The record shows that the original copy of the transcribed work sheet was produced at the trial by defendant’s present attorney from this attorney’s office files. It was admitted without objection, as plaintiff’s exhibit No. 1. Plaintiff’s only other exhibit was the letter quoted below and the envelope in which it was received. Plaintiff was her only witness.

The work sheet figures for the years 1943 through 1948 appear again in the trial record as part of the audit report introduced in entirety as defendant’s exhibit C, and purporting to be the complete audit defendant testified was being prepared for the litigation involving defendant, out of which the deadline that prompted the meeting with plaintiff had come.

These work sheet figures indicate an annual wage of $1,200 for the years 1943 through 194G; $1,800 for 1947; and $2,400 for 1948; a total of $9,000 for the six year period; on which $600 was shown as paid in three checks between July and November, 1948. With the exception of the $600 paid after full time employment began, these figures showed no wage payments whatsoever received by plaintiff between March 31, 1942, and December 31, 1948. Standing alone this is most unusual.

Defendant contended that plaintiff’s true part time wages were $40 monthly, and her part time services were as bookkeeper. The latter was not controverted. Defendant also insisted that he had never seen plaintiff’s wage figures contained in the audit report until they were shown to him in his present attorney’s office the day before the trial for plaintiff’s wages began, after plaintiff demanded they be produced at the trial.

Plaintiff testified that on several occasions following the date she assigned for stating the account, she demanded her back pay, always to be put off, except for the $1,000 and the $1,400 above noted, the $1,400 being mailed by defendant with a letter reading: “Enclosed find Bank Draft for $1,400.00. I haven’t got settled with Bill. Try and have some more a little later, /s/ Doyle.”

To the evidence directed to these points there was little objection by counsel for either party. However, thereafter when the defendant attempted to attack the entire account by offering to prove the conditions of plaintiff’s employment, her hours of work, the reasons her employment was increased to full time, the causes prompting preparation of the work sheet wage figures as a part of defendant’s business audit report, and the improbability that defendant would have stated an account upon the figures plaintiff alleged, plaintiff’s counsel repeatedly objected that such proof could be received only upon a special plea of fraud, error or mistake. Plaintiff’s objections were regularly sustained.

What has been summarized from the testimony of the parties is sufficient to show that plaintiff and the court took the position that once an account had been stated it could not be opened for fraud, or surcharged with items improperly omitted, or falsified for items improperly included, unless by way of confession and avoidance under a special plea of fraud, gross mistake or material error. This position is sound but, as will be shown, it is irrevelant to a defense which entirely denies that any account whatsoever was stated.

What has been summarized likewise sufficiently shows that the defendant’s position was an attack by a plea in bar on the ground that no account had ever been stated, so there was nothing upon which a fraud, mistake or error could be surcharged, and that under such circumstances defendant required no special pleading and could impeach the account at large and in its entirety by any proof relevant under a general denial, including evidence that the circumstances were such as to render it completely improbable defendant would have agreed to state the account as alleged. This likewise is sound.

So far as we can determine, this point has never been squarely decided in this state. Counsel for both parties have ably briefed the law and argued their contentions. Among the cases counsel cite, two actions on accounts stated should be mentioned. Each involves alleged frauds perpetrated on a corporation by its officers. In each a general denial was interposed but in each case the defense was an attempt to surcharge for fraud rather than to impeach at large. In both eases no question was raised that an account had not been stated, and in neither ease was there any offer of proof of improbability.

The first of these cases, one on which plaintiff lays great stress, is Mayger v. St. Louis Mining & Milling Co., 68 Mont. 492, 219 Pac. 1102, 1103. In this action the defendant corporation answered a plea of account stated with a general denial. The litigation continued over several years and evidently involved an interfamily dispute. A later amended answer specially pleading fraud was refused as tardy. Defense was grounded on testimony inferring collusion between the corporate officers and lack of corporate authority to state the account alleged. The decision holds that corporate authority existed and that no mala fides were apparent. Speaking for a full court, in language repeated by the trial judge while stating his position in the present case, Chief Justice Callaway in the Mayger case said:

“The agreement resulting in the account stated having the force of a contract the plaintiff must recover upon it, or fail in the action. Upon its answer, the defendant, in order to prevail must show that there was not any account stated, or that it has paid the amount alleged to be due. Further the defendant may not go, in the absence of a pleading alleging fraud, error, or mistake in the ascertainment of the balance, or in reaching the agreement resulting in the account stated. * * * (Emphasis supplied).

“It is unnecessary to refer to these contentions further [alleged malefactions by corporate officers] than to reiterate that in the absence of a pleading on behalf of the defendant alleging fraud, error, or mistake, it is not permissible to inquire into the items which made up the account stated, nor into the bona fides of the transaction.”

The Mayger case is not relevant here because, although a general denial was pleaded, the defense, that no account had been stated, was never raised under defendant’s attempted proof of fraud. In fact, plaintiff recovered on the account as allegedly stated.

The other of the two decisions to be mentioned is the case of Gordon Campbell Petroleum Co. v. Gordon Campbell-Kevin Syndicate, 75 Mont. 261, 242 Pac. 540. Examination of the original transcript shows both a general denial and a special plea of fraud. Evidence of corporate manipulation by plaintiff was received, but under the special plea. Defendant successfully impeached the alleged account stated, but the decision contains no rule as to evidence admissible solely under a general denial pleaded in bar of an account stated.

As stated above, we find no Montana decision specifically ruling on the admissibility of evidence of “improbability,” whether under a plea of general denial or a special plea of fraud, error or mistake.

Recognizing the novelty of the question and the probability of appeal, the court trying the present case carefully stated its position, as follows:

“Court: The action being on an account stated, the Court takes the view that the plaintiff is limited in her proof to proof of the contract agreement * * * and that the defendant is limited in his proof to a showing that there was no account stated and to any facts which would contradict the statements made by the plaintiff in her proof. * * * If the defendant has any proof to make of contradictory statements * * * or * * * any proof of facts which facts in themselves are a direct contradiction of the fact that an account stated was made, such testimony will be admitted. * * * The position taken by the plaintiff is that there was an agreement reached between them as to the amount that was due to her and that an account was stated between them as of date February 15th, 1949. If she sustains the position taken by her in her complaint and her proof, she is entitled to recover on the account stated. If the defendant sustains the position taken by him in his answer, that is a denial of an account stated, and his proof that there was no account stated, the plaintiff cannot recover. The Court will not receive evidence which merely shows an improbability of the statement of the plaintiff being true or the improbability that an account was stated * * * if I am in error, you will be in a position to raise the question clearly, I think.” Emphasis supplied. This is likewise sound, except as to the court’s position on evidence of improbability.

Defendant assigns seventeen specifications of error. The first eleven go to the court’s refusal to admit defendant’s offered testimony, the remaining six to the court’s refusing instructions offered by defendant.

As to the instructions refused, and except that defendant’s proposed instructions accentuate the court’s instructions by adding detail from the testimony, we find no substantial variance between the instructions the court gave and the instructions the court refused. No prejudicial error was committed by the court in refusing defendant’s proposed instructions.

Such, however, is not the case with the eleven specifications predicated on the court’s refusal to admit defendant’s offered proof generally attacking the entire account, and especially with defendant’s offers five and six specifically going to improbability.

Defendant’s first three offers of proof concerned plaintiff’s rate of pay, her duties, and the defendant’s theory of the true purpose for preparing plaintiff’s part time wage figures. The fourth offer concerned agreed value of plaintiff’s services, and the fifth concerned the reasonable value of these services.

These five offers of proof were all intended to establish that since, according to the defendants, the part time services were both agreed and reasonably of the value of no more than $40 monthly, and since according to defendant the figures of the work sheet were not prepared as a wage account stated, it would be improbable that defendant would state an account with plaintiff for such part time services ou the higher figures alleged by plaintiff.

Defendant’s sixth and seventh offers sought to confirm the position he took in his prior offers by additionally offering to prove that subsequent to the date of the alleged accounting, defendant made requests for a statement of back wages defendant still owed plaintiff.

Offers eight and nine were made to prove mistakes in the wage settlement figures. Number eight was that defendant had a running account with charge backs against plaintiff, and number nine was that upon a complete reckoning of all charges and all credits between plaintiff and defendant, to strike a balance that would be final for all matters between them, the net total due plaintiff was the sum of $495.35 as claimed by defendant, and not $6,000 as claimed by plaintiff. As a part of defendant’s entire defense of no account stated, this proof was admissible.

For whatever value it might have been to defendant, this evidence should have been admitted as part of an attack on the entire account admissible under a general denial. Excluding it was prejudicial error. As will appear below, the evidence was admissible to impeach a stated account, whether or not fraud, gross error or material mistake was specially pleaded.

Brief discussion of terms will clarify the issue involved. The action of account stated originated in the law merchant to force accounting and settlements upon a fiduciary. See 1 Am. Jur., Accounts and Accounting, section 26, page 281. At common law, actions on accounts stated were pleaded under the fourth of the common counts in general assumpsit. This count was called insimul computassent, meaning “they accounted together.” Denials that an account had been stated were pleaded as non assumpsit, meaning “he did not undertake” and were interposed in bar as a plea to the general issue. Under the codes the general issue is still variously retained, but it is known now as the general denial. In the present ease, a general denial was proper because the defendant sought to deny that he and the plaintiff “accounted together.” Defendant’s position was generally that “he did not undertake.” This raises the question not of whether plaintiff and defendant accounted together, in fraud, error or by mistake, but of whether or not plaintiff and defendant ever accounted at all. See 6 Bancroft’s Code Practice and Remedies, sections 4379 and 4380, pages 5823-5824; 1 Am. Jur., Accounts and Accounting, section 34, page 288; 1 C.J.S., Account, Stated, section 63, page 742; 7 C.J.S., Assumpsit, section 23, page 126; McKenzie v. Poorman Silver Mines of Colorado, 8 Cir., 88 F. 111, and for succinct use of common-law terms, see the brief report of Lyne v. Gilliat, 3 Call., Va. 5.

An account stated is one which has been “examined and accepted by the parties.” Prima, facie it is correct; and in the absence of “fraud or mistake, it is sufficient to warrant a recovery of the amount thereby agreed on.” See 75 A.L.R. 1284, annotation beginning page 1283, entitled “Conclusiveness of account stated,” citing Mayger v. St. Louis Mining & Milling Co., supra, Norum v. Ohio Oil Co., 83 Mont. 353, 272 Pac. 534.

To state an account is to supplant an old obligation with a new. There must be mutual agreement based on mutual understanding, for without understanding there can be no agreement. A plea to the general issue denies agreement. The evidence admissible under a general denial affirms the lack of mutual understanding necessary to reach an agreement. There can be no accounting together so long as either party fails to undertake. “Consent is not mutual, unless the parties all agree upon the same thing in the same sense.” R.C.M. 1947, section 13-316. “There must be the meeting of two separate and independent minds * * *." Gordon Campbell Petroleum Co. v. Gordon Campbell-Kevin Syndicate, supra, 75 Mont. at page 269, 242 Pac. at page 541. “To establish an account stated there must be a contract between the parties, that is, an express or implied promise by the debtor to the creditor." 6 Williston, Contracts, (Rev. Ed.) section 1862, page 5227, citing Hough v. Rocky Mountain Fire Ins. Co., 70 Mont. 244, 224 Pac. 858.

“An account stated presupposes an absolute acknowledgment or admission of a certain sum due, or an adjustment of accounts between the parties, the striking of a balance, and an assent, express or implied, to the correctness of the balance. If the acknowledgment or admission is qualified, and not absolute * * * there is no account stated.” 1 Am. Jur., Accounts and Accounting, section 23, page 277.

“Account stated must be understood as final adjustment of demands and amount due; and an account rendered for another purpose, or showing that it is not final, is not sufficient on which to predicate an account stated * * *. A partial settlement of the accounts without arriving at any balance is not sufficient to constitute an account stated.” 1 C.J.S., Account Stated, sections 25 and 26, pages 704, 705. See, also, Holtzman v. Hopwood Realty, Inc. 77 Ohio App. 515, 65 N.E. (2d) 409, 413, rehearing denied Ohio App., 68 N.E. (2d) 239, wherein it is said: ‘ ‘ The record is silent as to a meeting of the minds of the parties involved before the execution of this document. Holtzman testified that Hopwood requested him to sign the document so that Hopwood could settle certain lawsuits in which Holtzman was involved. Clearly, this document was not intended by the parties to be a settlement of their accounts. This Court approves the judgment of the trial Court in finding that the document in question did not constitute an account stated. ’ ’

Of the Montana decisions on accounts stated, Chief Justice Brantly’s opinions for the full court in Martin v. Heinze, 31 Mont. 68, 77 Pac. 427, and Johnson v. Gallatin Valley Milling Co., 38 Mont. 83, 98 Pac. 885, have been controlling for many years. They rule that an account, once it is stated, may be surcharged for fraud, error or mistake only upon a special plea. The latter opinion quotes from Chappedelaine v. Dechenaux, 4 Cranch 306, 2 L. Ed. 629, to declare the public policy underlying the rule:

“ ‘No practice could be more dangerous than that of opening accounts which the parties themselves have adjusted, on suggestion supported by doubtful or by only probable testimony'.”

These and other similar rulings have been reviewed at length and confirmed by this court in Norum v. Ohio Oil Co., supra, 83 Mont. at pages 361-362, 272 Pac. at page 537, and again in Pankovich v. Little Horn State Bank, 104 Mont. 394, 66 Pac. (2d) 765.

However the problem is not the sanctity of an account stated, but whether any account was stated. At best it is prima facie evidence only. Johnson v. Gallatin Valley Milling Co., supra. It may be widely attacked. The defendant may show that the parties never accounted at all. Mayger v. St. Louis Mining & Milling Co., supra. The defendant may prove any defense which destroys the plaintiff’s cause of action, including the defense of improbability. See, also, 6 Williston, Contracts (Rev. Ed.), section 1864, page 5236.

“The defense that no account was stated may be raised on the general issue. And under a denial of an allegation of an account stated, the defendant may show the pre-existing relation and transactions, as tending to show the inherent improbarbility of his having acquiesced and promised as claimed.” 1 Bancroft’s Code Pleading Practice and Remedies, Ten Year Supplement, section 785, page 435. Emphasis supplied.

Regardless of fraud or mistake it is a defense to action on account stated, that none was stated. 1 C.J.S., Account Stated, section 59 b, page 741.

“Since defendant may, under a general denial or general issue, show any fact which destroys plaintiff’s cause of action, in an action on an account stated he may prove under a general denial or the general issue that no account was stated. Accordingly, he may introdn.ee evidence of the improbability of his assent to an account rendered; and so, where the original account was for services rendered, he may prove the nature of the services and their'value, or that no services were rendered.” 1 C.J.S., Account Stated, section 63 bb, pages 748-749. Emphasis, supplied.

As held in the ruling cases of Martin v. Heinze, supra, Johnson v. Gallatin Valley Milling Co., supra, it is true that when the account stated is admitted, the parties cannot go back of it, and attack the original items of the account except upon proper averments of fraud, error or mistake. But this rule does not apply in determining an issue as to whether or not there was an account stated, and where the defendant denies the stating of any account he may show the inherent improbability of his agreement to such an account, and to that end evidence is admissible of at least the general nature of the circumstances of the business between the parties and the character of the objections made by the defendant to the items of the alleged accomit stated, although no fraud or mistake is alleged. 2 Bancroft’s Code Pleading, section 789, pages 1117, 1118.

The aforementioned Montana decisions are in conformity with Swords v. Occident Elevator Co., 72 Mont. 189, 232 Pac. 189, wherein this court held that all defenses in bar are admissible under the general issue, except matters of confession and avoidance.

Decisions from various states, briefly excerpted or summarized below, support this rule:

“The rule that an account stated can only be attacked for fraud, mistake, or manifest error does not apply in a case where the existence of the account stated is denied. * * * The evidence offered by the defendant and erroneously excluded was not offered for the purpose of impeaching the account, but as tending to disprove the plaintiff’s claim that an account had been stated. ’ ’ Consolidated Machinery & Wrecking Co. v. Harper Machinery Co., 190 App. Div. 283, 180 N.Y.S. 135, 137.

Coffee v. Williams, 103 Cal. 550, 37 Pac. 504. Appeal from a judgment for defendant and order denying new trial; farming and stock raising partnership; evidence of improbability erroneously excluded; reversed and remanded for new trial.

Steinmetz v. Grennon, 106 Or. 625, 212 Pac. 532. When defendant denies account stated he may show any facts tending to disprove plaintiff’s cause of action, including evidence showing the inherent improbability of the defendant having agreed to the alleged account.

E. W. McLellan Co. v. East San Mateo Land Co., 166 Cal. 736, 137 Pac. 1145, 1147. “But, where the defendant has raised an issue regarding his assent to the alleged account stated, he may introduce any evidence tending to show he did not so assent.”

Reid v. Topper, 32 Ariz. 381, 259 Pac. 397. Defense that no account was stated may be raised by defendant on general issue.

Gordon Stores Co. v. Rubin, 39 N.M. 100, 41 Pac. (2d) 276. Decision holds improbability may be shown.

Mayer Coal Co. v. Stallsmith, 89 Kan. 81, 129 Pac. 831. Under a general denial, defendant may show any facts which destroy plaintiff’s claim.

Rosenbaum v. McEven, 20 Colo. App. 58, 131 Pac. 780. Both parties must intend to make a final adjustment.

Woodson v. Leo Greenwald Vinegar Co., 220 Mo. App. 831, 272 S.W. 1084. Judgment for plaintiff reversed for error in excluding evidence of improbability.

A recent Idaho case, Keane v. McFee, 75 Idaho 541, 275 Pac. (2d) 960, at page 968, states: “This conclusion is further strengthened by the proposition that under a general denial, a defendant may show any facts and circumstances showing the improbability of having agreed to the account as rendered and claimed to be an account stated, [citing cases].”

It is interesting to note that the Idaho Court referred to the Montana case, Mather v. Musselman, 79 Mont. 566, 257 Pac. 427, as to some extent announcing a doctrine contrary. However, we have heretofore pointed out the difference in the Montana cases upon which observations in the Mather v. Musselman case were-predicated. The Mather v. Musselman case states, 79 Mont. at page 581, 257 Pac. at page 433, in keeping we believe with our opinion in this case that£ 1 This court has likewise held that even an account stated is but strong prima facie evidence of its correctness and does not create an estoppel (Johnson v. Gallatin Valley Milling Co., 38 Mont. 83, 98 Pac. 883), and in Martin v. Heinze, 31 Mont. 68, 77 Pac. 427, the distinction between an account stated and an open unsettled account in this regard is pointed out.

“Whereas an account stated partakes of the nature of a contract between the parties, and, in order to prove omission from or mistakes in the statement, they must be pleaded, here we have merely an open and unsettled account between the joint adventurers, on which Musselman rendered an account now challenged by plaintiff, and, as, in the case of any open account, defendants were entitled, under their general denial, to show any facts tending to defeat plaintiff’s prima facie case.”

From the foregoing it is manifest that when the court excluded defendant’s offered testimony going to improbability, the court departed in error from the general rule it had correctly announced in the statement of the position it would take under the general denial.

When this matter is again tried, the presumption of acquiescence arising from defendant’s retention of the writing evidencing the alleged account stated should be fully developed by testimony. Defendant denied knowledge of the writing and took the position that the payments made after the writing was prepared were to apply on an open account and, when increased by credits due defendant, which credits were never made clear during the trial, would reduce the unpaid back wages from $8,-400 to $495.35. This difference is so substantial that if no account was stated between the parties their transactions require re-examination to determine what the proper balance may be.

Whether or not all items between parties stating an account must be included and a final general net balance struck before their actions will effect the stating of an account need not be decided in the present case. The holdings are in dispute. 1 C.J.S., Account Stated, section 26, page 705; 1 Am. Jur., Accounts and Accounting, section 22, page 276. It should be observed, however, that no more fertile source of multitudinous litigation can be imagined than stating accounts piecemeal.

The applicable section of the Restatement of Contracts reads as follows:

“(1) Matured debts are discharged by a manifestation of assent in good faith by debtor and creditor to a stated sum as an accurate computation of the amount of the matured debt or debts due the creditor, or if there are cross demands as the amount of the difference between the total indebtedness due one party and the total indebtedness due the other party. A new duty arises to pay a sum so fixed. [Emphasis added].

“(2) Retention without objection by one party for an unreasonably long time of a statement of account rendered by the other party is a manifestation of assent within the rule stated within Subsection (1).” Restatement, Contracts, section 422, pages 793, 794.

Wigmore gives this rule: “In one situation, however, there has been a uniform rule, namely, that the failure to dispute an account rendered, after the lapse of a reasonable time, amounts to an admission of its correctness.” 4 Wigmore, Evidence (3d Ed.), section 1073, pages 89, 96.

Plaintiff may urge the presumption of acquiescence; under a general denial defendant may dispute the presumption by whatever relevant evidence he can produce including evidence of improbability.

“Retention for an unreasonable time, without objection, of a statement of an account rendered showing the net balance due prima facie shows assent to its correctness and, therefore is prima facie evidence of an account stated. * * *

“Failure to object to an account does not, as against the party to whom it was presented, conclusively establish its character as an account stated, but merely raises a presumption to that effect, and his conduct therein is open to explanation. * * *

“The presumption * * * may be rebutted by showing facts inconsistent with it * * *.” 1 C.J.S., Account Stated, section 37, pages 715-716.

But, the foregoing rules on acquiescence to an account rendered for an unreasonable time, thereby making it an account stated, do not come into play in the instant case until it is established by a preponderance of the evidence, or it is admitted that an account was rendered for the purpose of arriving at an accounting by the debtor and creditor as discussed in the early part of this opinion.

Much of which appears in the dissent filed long after the majority opinion is premature at this stage of the case, and presupposes and assumes the fact to be that an account was rendered for the purpose of arriving at a settlement and that thus an account became stated. This may or may not be the facts found by the jury on retrial upon development of the defendant’s evidence.

However, we are not to be understood, as here holding, that defendant’s retention either was or was not for an unreasonable time. This is one of the matters that should be developed and submitted upon a retrial. See 1 Am. Jur., Accounts and Accounting, section 28, pages 283-284, for examples of reasonable and unreasonable time for retention of an account stated.

What has been said heretofore disposes of this appeal. However, we feel it pertinent to make one further comment to show another reason why we would reverse the trial court. The court and the respondent treated the question involved as one under a plea in bar or a general denial. An examination of the answer filed and the reply thereto shows there was more than just a general denial. The answer admits the services performed, denies there was an account stated, affirmatively alleges there was a running account between the plaintiff and defendant, denies specifically an indebtedness of $6,000, but asserts and admits that the sum of $495.35 was due and owing and offers to pay. The reply admitted the running account to the alleged date of the stating of the account.

The plaintiff then had notice that she would be put to proof of not only the alleged account stated, but also the details of the running account with a specific sum due as alleged by the defendant. The evidence offered by the defendant was admissible for that purpose.

The judgment is reversed and the case remanded to the trial court for new trial.

MR. CHIEF JUSTICE HARRISON and MR. JUSTICE ANGSTMAN, concur.