Opinion by
Me. Justice Mesteezat,
This action was brought to recover for the use and occupation of a dwelling house in the borough of West Chester. The plaintiff claims of the defendant the sum of $1,650, being for the period of five years and six months, from April 1, 1893 to October 1, 1898, at the rate of $300 per year.
Joshua N. Peirce died on April 11, 1892, seized of a large amount of real estate in West Chester borough, consisting of a number of houses and lots, and among them the house and lot for which the rent in this suit is claimed. He left surviving [12]*12him a widow, Isabella E. Peirce, the defendant, her minor child Elsie and two adult children of a former marriage, Cidney Y. Peirce and W. Grant Peirce. He with his wife and two daughters resided, at the time of his death, in the house, the rent of which is in controversy in this action. In his will, Joshua N. Peirce gave the one third of the net rents of all his real estate to his wife and daughter Elsie, share and share alike, during the widowhood of the former, and upon her remarriage or death her interest in his estate was to cease, and was to pass to her daughter Elsie during her life with remainder to the latter’s issue. After some specific bequests, he gave the residue of his estate to his two other children in equal shares and appointed them executors of his will. They were authorized to sell any of his real estate, with the proviso, however, that they should secure the interest of his widow and daughter Elsie in such part thereof as might be sold, and that the house and lot where he resided should not be sold prior to the marriage or death of his widow, without her written consent. His adult children were named as testamentary guardians of his daughter Elsie during her minority. Grant Peirce renounced his right to act as executor, and letters testamentary were granted to Cidney Peirce alone. Under the provisions of the will, the executors were authorized to take possession of, lease the real estate and collect the rents.
After her father’s death, Cidney Peirce continued to reside with the widow and her daughter Elsie in her father’s homestead until April 1,1893, when she removed elsewhere, and the widow and her daughter remained there until this suit was brought. While Cidney and the widow resided together, no rent was demanded or paid for the premises and each paid an equal share of the running expenses of the house. About April 1, 1893, Mrs. Peirce was requested to sign a lease for the premises which she was occupying, but she declined to do so and assigned as a reason that her husband never expected her to pay any rent for the property.
In October, 1893, the plaintiff prepared and furnished to the defendant an account showing the rents received from, and the expenses incurred in and about, all the properties from May 1, 1892, until October 1, of that year. On the debtor side of the account appeared the following item: “ To rent due from Mrs. Isabella E. Pierce for Church street house from April 1, 1893, [13]*13to October 1, 1893, $150.” Every six months thereafter, until October 1, 1898, a similar account containing a like charge against the widow was rendered, except one year when a charge of $300 was made for the whole year. By an agreement, dated December 23, 1893, and executed under the hands and seals of the widow and the two adult children, it was provided, inter alia, “ that Isabella E. Peirce is to pay rent for the dwelling house occupied by her, the amount due and to become due to be hereafter agreed upon, or to be otherwise determined.”
It appears from the plaintiff’s testimony that she collected the rents of all the properties of the estate, except that in the possession of the defendant, and paid the latter her share in cash until June 8, 1893. Thereafter the plaintiff applied the defendant’s share of the net income to the payment of the rent claimed to be due by her. This amounted to $1,247.77, leaving a balance due the plaintiff October 1, 1898, according to her calculation, of $335.18. This does not take into account the water rent which was paid by Mrs. Peirce on the property she occupied. The rents, it is claimed by the plaintiff, were disbursed by her on a basis of $300 per annum for the property occupied by the defendant. There was no express agreement at any time between the parties as to the amount of rent “ due and to become due ” by the defendant, nor, prior to October 1, 1898, was there any special request by plaintiff for the payment of any balance of rent. Defendant made no demand for more money when the accounts were presented, and raised no objection to the charge therein against her of $300 per year for the property.
The testimony in the case does not justify the conclusion that the plaintiff distributed the net income from the properties to her brother and sister on the basis of a charge of $300 per annum for the rent of the premises occupied by the defendant. On the contrary, we think the inference from all the facts disclosed is that she took due precaution to protect herself in this respect until the annual rental should be determined as provided in the written agreement between the parties.
The first and second assignments of error relate to the exclusion of certain testimony of the plaintiff, by which she offered to show that she relied on the payment of the rent at the rate of $300 per year, and that if she had known that the defendant [14]*14was not willing to pay at that rate, she would have tried to get another tenant. The third and fourth assignments allege error, in the court’s refusal to affirm the plaintiff’s first and second points for charge. These four assignments, together with the fifth and sixth assignments, raise the question as to the effect of the rendition of the successive accounts by plaintiff, including the charge of rent against Mrs. Peirce, and her action in regard thereto. It is contended by the appellant that these accounts became, under the circumstances, accounts stated against both parties, and as such fixed the defendant for $300 per annum as the rent due from her for the property she occupied, and that she is now estopped from alleging anything to the contrary. If this contention be correct, these assignments should be sustained.
■ It is well settled that an account rendered to a party indebted by his creditor, and not objected to in a reasonable time, is prima facie evidence against the party to whom it is rendered: Sergeant’s Executors v. Ewing, 30 Pa. 75. It is said by Lord Mansfield in Trueman v. Hurst, 1 Term Rep. 42, that an account stated “ is an agreement by both parties that all the articles are true.” It must be understood by both parties that the account is a final adjustment of the items contained therein and as to the balance struck: 1 Am. & Eng. Ency. of Law (2d ed.), 443. The assent to the account rendered by the creditor by which the agreement is made on the part of the debtor may be established by the conduct of the latter, and hence by his acquiescence for a reasonable time after the account has been presented to him. The consent of the debtor must be direct and unconditional and must appear in some way, as it is his consent that imparts to an account rendered the character of an account stated: McCall v. Nave, 52 Miss. 494. But acquiescence in the correctness of thé items of an account is not conclusively established by its retention by the debtor. This may be explained and successfully rebutted by showing other facts in the case.
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Opinion by
Me. Justice Mesteezat,
This action was brought to recover for the use and occupation of a dwelling house in the borough of West Chester. The plaintiff claims of the defendant the sum of $1,650, being for the period of five years and six months, from April 1, 1893 to October 1, 1898, at the rate of $300 per year.
Joshua N. Peirce died on April 11, 1892, seized of a large amount of real estate in West Chester borough, consisting of a number of houses and lots, and among them the house and lot for which the rent in this suit is claimed. He left surviving [12]*12him a widow, Isabella E. Peirce, the defendant, her minor child Elsie and two adult children of a former marriage, Cidney Y. Peirce and W. Grant Peirce. He with his wife and two daughters resided, at the time of his death, in the house, the rent of which is in controversy in this action. In his will, Joshua N. Peirce gave the one third of the net rents of all his real estate to his wife and daughter Elsie, share and share alike, during the widowhood of the former, and upon her remarriage or death her interest in his estate was to cease, and was to pass to her daughter Elsie during her life with remainder to the latter’s issue. After some specific bequests, he gave the residue of his estate to his two other children in equal shares and appointed them executors of his will. They were authorized to sell any of his real estate, with the proviso, however, that they should secure the interest of his widow and daughter Elsie in such part thereof as might be sold, and that the house and lot where he resided should not be sold prior to the marriage or death of his widow, without her written consent. His adult children were named as testamentary guardians of his daughter Elsie during her minority. Grant Peirce renounced his right to act as executor, and letters testamentary were granted to Cidney Peirce alone. Under the provisions of the will, the executors were authorized to take possession of, lease the real estate and collect the rents.
After her father’s death, Cidney Peirce continued to reside with the widow and her daughter Elsie in her father’s homestead until April 1,1893, when she removed elsewhere, and the widow and her daughter remained there until this suit was brought. While Cidney and the widow resided together, no rent was demanded or paid for the premises and each paid an equal share of the running expenses of the house. About April 1, 1893, Mrs. Peirce was requested to sign a lease for the premises which she was occupying, but she declined to do so and assigned as a reason that her husband never expected her to pay any rent for the property.
In October, 1893, the plaintiff prepared and furnished to the defendant an account showing the rents received from, and the expenses incurred in and about, all the properties from May 1, 1892, until October 1, of that year. On the debtor side of the account appeared the following item: “ To rent due from Mrs. Isabella E. Pierce for Church street house from April 1, 1893, [13]*13to October 1, 1893, $150.” Every six months thereafter, until October 1, 1898, a similar account containing a like charge against the widow was rendered, except one year when a charge of $300 was made for the whole year. By an agreement, dated December 23, 1893, and executed under the hands and seals of the widow and the two adult children, it was provided, inter alia, “ that Isabella E. Peirce is to pay rent for the dwelling house occupied by her, the amount due and to become due to be hereafter agreed upon, or to be otherwise determined.”
It appears from the plaintiff’s testimony that she collected the rents of all the properties of the estate, except that in the possession of the defendant, and paid the latter her share in cash until June 8, 1893. Thereafter the plaintiff applied the defendant’s share of the net income to the payment of the rent claimed to be due by her. This amounted to $1,247.77, leaving a balance due the plaintiff October 1, 1898, according to her calculation, of $335.18. This does not take into account the water rent which was paid by Mrs. Peirce on the property she occupied. The rents, it is claimed by the plaintiff, were disbursed by her on a basis of $300 per annum for the property occupied by the defendant. There was no express agreement at any time between the parties as to the amount of rent “ due and to become due ” by the defendant, nor, prior to October 1, 1898, was there any special request by plaintiff for the payment of any balance of rent. Defendant made no demand for more money when the accounts were presented, and raised no objection to the charge therein against her of $300 per year for the property.
The testimony in the case does not justify the conclusion that the plaintiff distributed the net income from the properties to her brother and sister on the basis of a charge of $300 per annum for the rent of the premises occupied by the defendant. On the contrary, we think the inference from all the facts disclosed is that she took due precaution to protect herself in this respect until the annual rental should be determined as provided in the written agreement between the parties.
The first and second assignments of error relate to the exclusion of certain testimony of the plaintiff, by which she offered to show that she relied on the payment of the rent at the rate of $300 per year, and that if she had known that the defendant [14]*14was not willing to pay at that rate, she would have tried to get another tenant. The third and fourth assignments allege error, in the court’s refusal to affirm the plaintiff’s first and second points for charge. These four assignments, together with the fifth and sixth assignments, raise the question as to the effect of the rendition of the successive accounts by plaintiff, including the charge of rent against Mrs. Peirce, and her action in regard thereto. It is contended by the appellant that these accounts became, under the circumstances, accounts stated against both parties, and as such fixed the defendant for $300 per annum as the rent due from her for the property she occupied, and that she is now estopped from alleging anything to the contrary. If this contention be correct, these assignments should be sustained.
■ It is well settled that an account rendered to a party indebted by his creditor, and not objected to in a reasonable time, is prima facie evidence against the party to whom it is rendered: Sergeant’s Executors v. Ewing, 30 Pa. 75. It is said by Lord Mansfield in Trueman v. Hurst, 1 Term Rep. 42, that an account stated “ is an agreement by both parties that all the articles are true.” It must be understood by both parties that the account is a final adjustment of the items contained therein and as to the balance struck: 1 Am. & Eng. Ency. of Law (2d ed.), 443. The assent to the account rendered by the creditor by which the agreement is made on the part of the debtor may be established by the conduct of the latter, and hence by his acquiescence for a reasonable time after the account has been presented to him. The consent of the debtor must be direct and unconditional and must appear in some way, as it is his consent that imparts to an account rendered the character of an account stated: McCall v. Nave, 52 Miss. 494. But acquiescence in the correctness of thé items of an account is not conclusively established by its retention by the debtor. This may be explained and successfully rebutted by showing other facts in the case. “ Thus the fact of retention may be explained by showing that the party failing to object was absent from home, suffering from illness, of expected shortly to see the other party, or that the parties had already come to a disagreement when the account was rendered: ” 1 Am. & Eng. Ency. of Law (2d ed.), 453, Many authorities are cited in support of this principle. In Kusterer [15]*15Brewing Company v. Friar, 99 Mich. 190, it is held that where a party renders an account which is at variance with the positive contract of the parties as to the price of the articles included therein, its silent retention does not render it an account stated.
Applying these principles to the facts of the case in hand it is clear that the account rendered by the plaintiff did not become an account stated as to the defendant. The first account was presented to the defendant by the plaintiff in October, 1893, and was a semiannual statement of the receipts of the rents and disbursements up to October 1, 1893. This contained the charge of $150, the half yearly rent of the premises occupied by the defendant. Silence on the part of Mrs. Peirce for a reasonable period would have shown an acquiescence in the charge against her and would have made her liable to account to the plaintiff for the rent at the rate of $300 per year. But, on the other hand, an objection by the defendant would have conclusively deprived the account from having that effect and would have prevented it from being used as evidence to establish the defendant’s assent to that rate of rent for the premises. The facts disclosed show that Mrs. Peirce did not only not remain silent as to the charge against her, but also that she objected to it, and that her objection resulted in an agreement between the parties in interest that “the amount (of rent) due and to become due to be hereafter agreed upon, or to be otherwise determined.” This agreement was made December 23, 1893, before the second semiannual statement was rendered, and must be regarded as a positive declaration by the defendant that she did not accede to the rate proposed in the account, and must be taken as the assent of the plaintiff that the rate of rent “ due and to become due,” should thereafter be adjusted. The agreement of the parties applied explicitly not only to the statement rendered in October, 1893, but also to all subsequent accounts, and thus deprived them of the character of stated accounts. After this contract had been entered into, the defendant was not required to notify the plaintiff of her objection to the charge in each of the several accounts, but could rely upon the rate being unfixed until it had been “agreed upon, or otherwise determined.” The retention of the accounts by the defendant, under the circum[16]*16stances, could not mislead the plaintiff into a belief that the defendant acquiesced in the charge against her, and thereby justify the plaintiff in distributing the rents of the properties or in taking any other action relative thereto on the basis of a rent of $800 per year to be paid by the defendant. Neither would the failure by the defendant to object to the accounts determine the rate, and unless the parties agreed, the rate must necessarily be determined by a court and jury, as was done in this case. There was, therefore, no account stated which would estop the defendant from having the rate of rent at which she was chargeable adjusted in this case.
The remaining assignments, except the eleventh, allege error by the court in permitting the jury to deduct from the rent due the plaintiff the defendant’s share in all the rents, which was applied by the plaintiff as payments on defendant’s rent as it was collected by the plaintiff. The learned counsel for the appellant contend that this was a direction to the jury to allow against the plaintiff’s claim a set-off of the defendant’s share of trust funds in the hands of the plaintiff as trustee, and thereby to make a distribution of said funds in the court of common pleas.
If the plaintiff’s premises were correct, her conclusion would logically follow, and the action of the court below would be erroneous. The facts disclosed on the trial, however, do not show that there was five and a half years’ rent due from the defendant at the time the suit was brought. It is true that the plaintiff’s statement avers that amount of rent to be due and payable. But the testimony of the plaintiff herself, which is not impeached by other testimony or the facts in the case, establishes the fact that during the period for which the rent is claimed, the plaintiff collected the rents from the other properties and applied defendant’s share thereof as payment for the rent due from Mrs. Peirce for the premises she occupied. She therefore did not hold Mrs. Peirce’s share of the funds thus Collected as moneys of Mrs. Peirce awaiting distribution by the orphans’ court, but she took the responsibility of applying it to the indebtedness due the estate from the defendant. Having made this application of the money, and Mrs. Peirce not objecting, there was not five and a half years’ rent due from the defendant when this action was brought, but only the bal[17]*17anee after the deduction of the payments thus credited by the plaintiff. In fact, the plaintiff testifies that there was due the sum of $402.22, less the one sixth thereof, from the defendant after she (the plaintiff) had applied $1,247.77, the defendant’s share of the rents, to the payment of the rent, due from the defendant, and that said sum is the amount claimed in this action. It is clear, therefore, that no question of set-off in the technical sense of the term arises, and that the claim in the present suit is, as stated by plaintiff, the sum named by her as a balance, computed and ascertained by her on a basis of $300 per year for the premises occupied by the defendant. Had the jury under the court’s instructions found $300 to be a reasonable rent for the premises, the verdict would have been for the plaintiff for the amount she claimed. But the plaintiff’s contention in this respect was not sustained by the jury, and a lower rate having been fixed as a reasonable compensation for the use of the premises by the defendant, and the aggregate thereof being in the judgment of the jury equal to the surn claimed by the plaintiff, a verdict was rendered for the defendant.
The eleventh assignment is without merit. The case was properly submitted to the jury on testimony that justified the verdict, and the learned judge of the court below committed no error in refusing to set it aside.
The assignments of error are overruled, and the judgment is affirmed.