Nodine v. First National Bank

68 P. 1109, 41 Or. 386, 1902 Ore. LEXIS 99

Opinion

Mr. Chief Justice Bean,

after stating the facts, delivered the opinion of the court.

The record contains numerous assignments of error, but Ave do not deem it necessary to notice them in detail. The amount plaintiff seeks to recover in this action, as shown by the pleadings and testimony, consists of money alleged to have been déposited Avith defendant to his credit by third persons prior to September,' 1883, for which, as he contends, he never received the proper credit. The evidence shows that from 1883, to 1893 he continued to do business with the bank, his deposits during that time amounting to more than $165,000. Beginning with September 29, 1883, the bank rendered to him at frequent intervals, and generally from month to month, itemized statements of his account, showing in detail the balance -carried over from previous statements, together with all credits and debits. The last one of these statements was rendered on September 1, 1894, more than six years before the commencement of this action, and showed a balance due plaintiff at that time of $4.82. No objection was ever made by him to these accounts, or any of them, except, as he testifies, that when the first one was rendered in September, 1883, he insisted that the bank had failed to give him credit for certain moneys paid to it on his account; but the officers of the bank contended that he was mistaken, and that all proper credits had been given, and refused to make any change in the account. From this time on for the succeeding ten years the plaintiff continued to do business with the bank, and it continued to render him monthly or bimonthly statements of his account, which were received and retained by him without objection. On this state of facts the defendant requested the court to charge the jury, in substance, that the accounts so rendered, and especially the one of September, 1894, constituted an account stated, and a bar to the action. This instruction was refused, but the court advised the jury if they found from the evidence that plaintiff failed to make any objections to the statements for an unreasonable length of time after they were delivered to him, they would become stated accounts, if they further found that such statements Avere made six years or more prior to the commencement of the action.

1. This court has had occasion in many instances to consider the question of an account stated, and it must now be regarded as settled that an account rendered and delivered to the debtor, Avhich exhibits the creditor’s demand, becomes, as between them, an account stated, unless objected to within a reasonable time; and where, as in this case, the facts are undisputed, the question as to AA'hat constitutes a reasonable time is one of law for the court, and not of fact for the jury: Crawford v. Hutchinson, 38 Or. 578 (56 Pac. 84).

2. At one time this rule applied to accounts between merchants only, but it has now become so extended as to embrace practically every kind of transaction involving the relation of debtor and creditor, and applies to a bank and its customer or depositor.

3. The relation of a bank and its depositor is that of an ordinary debtor and creditor, except that by custom the bank is only liable upon demand made at its place of business. In other respects the dealings between a bank and its customer are governed by the same rules as those between, other debtors and creditors. When the pass book of a depositor is written up and delivered to him,- or the bank renders him an itemized statement of his account, and he retains the same without objecting thereto within a reasonable time, it constitutes an account stated: 1 Am. & Eng. Ency. Law (2 ed.), 449, note; Leather Mfrs’. Bank v. Morgan, 117 U. S. 96 (6 Sup. Ct. 657); Clark v. Mechanics’ Nat. Bank, 11 Daly, 239; Benton County Bank v. Walker, 85 Iowa, 728 (51 N. W. 241); Hardy v. Chesapeake Bank, 51 Md. 562 (34 Am. Rep. 325).

4. The plaintiff retained the account rendered to him in September, 1894, for almost, if not quite, six years, without objecting thereto, and under the law it became an account stated, and a complete defense to this action, unless impeached by fraud or mistake. The statute of limitations seems to have been confused in the instructions with an account stated. An account rendered becomes an account stated if not objected to within a reasonable time, and this is a matter wholly distinct from the statute of limitations.

5. The contention is made that the answer does not contain a sufficient plea of an account stated. But, whatever might be said of it if the question were here on a demurrer to the answer, it is manifestly sufficient after verdict. It follows from these views that the judgment must be reversed, and the 'cause remanded for a new trial. Reversed.