Trimble Cattle Co. v. Henry

592 P.2d 1310, 122 Ariz. 44, 1979 Ariz. App. LEXIS 427
CourtCourt of Appeals of Arizona
DecidedMarch 1, 1979
DocketNo. 1 CA-CIV 3940
StatusPublished
Cited by8 cases

This text of 592 P.2d 1310 (Trimble Cattle Co. v. Henry) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trimble Cattle Co. v. Henry, 592 P.2d 1310, 122 Ariz. 44, 1979 Ariz. App. LEXIS 427 (Ark. Ct. App. 1979).

Opinion

OPINION

DONOFRIO, Judge.

The plaintiff-appellee Henry & Horne is a partnership which provides accounting services. The defendant-appellant Trimble Cattle Company is a corporation wholly owned by the defendant-appellant Lyle Norris Trimble (hereinafter Trimble). Trimble also conducts a sole proprietorship known as Trimble Farms, which business was formerly a partnership consisting of Trimble and defendant-appellant A. Stanley Pine. Henry & Horne commenced this litigation, consisting of two separate actions, consolidated in the Superior Court, to collect fees for accounting services which it alleged were performed for Trimble Cattle Company (in C-290159) and for Trimble Farms (in C— 290160).

In both cases, Henry & Horne pled an account stated with an alternative count for recovery on an open account. Trial of the consolidated causes was to the court, sitting without a jury. The trial court rendered judgment in favor of Henry & Horne in the amount prayed for ($5,542.00) against Trimble and Pine doing business as Trimble Farms, plus prejudgment interest. It rendered judgment in favor of Henry & Horne and against Trimble Cattle Company in the amount of $1,740.18, plus prejudgment interest. This figure was $288 less than the amount prayed for but was the amount of Henry & Horne’s last statement. The parties did not request findings of facts and conclusions of law, and the judgment does not indicate the basis for the trial court’s decision.

On appeal, appellants challenge the sufficiency of the evidence to support a judgment against them either on the basis of accounts stated or open account. Appellee seeks to uphold the judgments on either ground. We must of course view the record in the light most favorable to sustaining the judgment. We must also assume that the trial court made all findings necessary to support the judgment, and we must affirm if there is any theory of the case upon which the judgment can be sustained and any reasonable evidence in the record supporting such theory. Gabitzsch v. Cole, 95 Ariz. 15, 386 P.2d 23 (1963); Tang v. Avitable, 76 Ariz. 346, 264 P.2d 835 (1953); Jerger v. Rubin, 106 Ariz. 114, 471 P.2d 726 (1970).

Appellee commenced performing accounting services for Trimble Cattle Company and Trimble Farms many years prior to 1971. Appellee’s employee Ralph Dietzel performed the necessary accounting work for both entities. He testified in a general way as to the nature of the work performed for the two entities from 1971 through early 1973. During this period of time the Trimble Farms partnership was dissolved. Dietzel testified that he spent a “couple hundred hours” on the dissolution. A pay[47]*47ment of $3,000.00 was made on this account during the period, which Trimble testified was the amount which he understood Henry & Horne would be entitled to for its work on the dissolution. In regard to the cattle company, Trimble testified that he told appellee that he would not pay for accounting services performed for cattle feed investors who worked with the corporation. Dietzel testified to the contrary that he had merely been asked to separate out charges in respect to the investors to show their amount. Trimble and Pine alleged payment of the Trimble Farms account in full ($3,000.00) and Trimble testified in behalf of the Cattle Company that he paid Henry & Horne all uncontested amounts due. Dietzel testified to the contrary that Trimble had never complained to him about any billing, either to Trimble Farms or to the Cattle Company-

Trimble took all of his business to another accountant in the spring of 1973. Appellee rendered a final statement to Trimble Cattle Company on June 30, 1973 in the amount of $2,028.18. A final statement dated July 31,1973 was rendered to Trimble Farms in the amount of $5,542.00. Both statements were admitted into evidence. There was no positive testimony as to precisely when they were mailed to or received by Trimble but their receipt by appellants at or about the time of rendering is not contested. There was no correspondence or communication about either of the accounts prior to March of 1974, when appellees commenced suit.

Appellees’ basic position is that the appellants, by their silence, assented to the accounts as finally rendered, so that they became accounts stated.

An account stated or “stated account:”

“signifies an agreed balance between the parties to a settlement; that is, that they have agreed after an investigation of their accounts that a certain balance is due from one to the other. But whether this agreement was express or implied is immaterial so long as it is actual; the agreement itself, and not the manner of reaching it, being the important consideration.” Chittenden & Eastman Co. v. Leader Furniture Co., 23 Ariz. 93, 94, 95, 201 P. 843, 844 (1921).

The necessity of an agreement or “meeting of the minds” is emphasized in Holt v. Western Farm Services Inc., 110 Ariz. 276, 517 P.2d 1272 (1974), and Builders Supply Corp. v. Marshall, 88 Ariz. 89, 352 P.2d 982 (1960).

An agreement can be shown in some cases by the rendering of a statement and the absence of an objection to it. The rule is stated in § 422 of the Restatement of Contracts:

“§ 442 EFFECT OF ACCOUNT STATED
(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 * * * . A new duty arises to pay a sum so fixed.
(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 rules stated within subsection (1).”

Comment C under § 422 states:

“c. It is not essential that an account shall be stated in a particular form. Any evidence indicating assent by a debtor to his creditor that a stated amount is that due the creditor, is ground for implying a promise by the debtor. Express statements are not essential; inferences from conduct are enough. So that retention of a statement of account without objection for more than a reasonable time, implies consent to its correctness.”

Professor Corbin takes the view that certain unliquidated fees for professional services are less susceptible of proof of assent by silence. See 6, Corbin on Contracts (1964), § 1313 at page 175; compare Annot., Retention of bill for professional services as effecting an account stated, 49 A.L.R. 1485 (1927).

[48]*48The question of the sufficiency of evidence to show assent by silence was before the court in Meagher v. Kavli, 251 Minn. 477, 88 N.W.2d 871 (1958). Quoting extensively from early New York authority, the court stated at 88 N.W.2d 881:

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592 P.2d 1310, 122 Ariz. 44, 1979 Ariz. App. LEXIS 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trimble-cattle-co-v-henry-arizctapp-1979.