Millard v. Bennett

139 N.W. 914, 161 Iowa 242

• Court: Supreme Court of Iowa
• Decided: February 18, 1913
• Status: Published

Opinion

Preston, J.

1. account stated: presumption: instruction I. The real contention of appellant on this appeal is in regard to his claim that there was a settlement of all matters between the parties, because he rendered an account to plaintiff, which was retained and in for such a length of time that ft became an account stated. The contention is that, defendant having pleaded an account stated, the court erred in leaving it to the jury to determine, from the evidence, whether the account sent to plaintiff by the defendant became an account stated. A part of the instruction reads: “What will ■ amount to a stated account from the presumed acquiescence of the plaintiff, arising from lapse of time and his failure to object to the same within a reasonable time, depends upon the circumstances and nature of the transaction and habits of business, and it is for you to determine, from all the circumstances of the. ease, whether plaintiff acquiesced in the statement rendered by the defendant by lapse of time.” It is appellant’s contention that the evidence was undisputed that plaintiff kept the account for about a month, and that, as a matter of law, it became an account stated. He claims that the question of reasonable time should not have been submitted to the jury.

The evidence shows that the defendant sent the account to plaintiff July 18th, but that the plaintiff was away from home much of the time in July and August; that he was not in Cedar Rapids, his home, in July at all; that, within a short time after he received defendant’s letter and account, he made out his own account against the defendant, and sent it to him. The instruction is in accord with the law and the Iowa cases. 1 Cyc. 375, 377, 383, 384; Hollenbeck v. Ristine, 105 Iowa, 488; White v. Hampton, 10 Iowa, 238. The theory is that, if the account was received and not objected to within a reasonable time, acquiescence may be presumed from silence. We fail to see how the plaintiff could have acquiesced in this account until after it had been received by him. Under the evidence, this matter was a question for the jury, and the court property submitted it.

2. evidence: weight and credibility: determinatopn by jury II. It is claimed by the appellant that the verdict is contrary to the evidence and the instructions. He says the jury should have believed his witnesses instead of those for plaintiff. There was a conflict in the evidence, and it ■ was clearly for the jury to determine the weight to be given to the testimony of the witnesses.

III. A question propounded to one of the witnesses is complained of as leading; but we think it was not so. The instructions offered; in so far as they .stated the law as applicable to the case, were covered by those given by the court. There was no error. — Affirmed.