[450]*450The opinion of the court was delivered by
Reed, J.
It appears from the state of .the case agreed upon, that the plaintiff grounded his right of action upon an account stated between himself and the defendant. ■
The plaintiff, through his agent, presented a bill to the defendant, and there is testimony going to show that the defendant admitted that the bill was correct, but refused to pay it because he claimed that the plaintiff owed him a bill for a larger amount, but he stated that he would pay the plaintiff the bill if plaintiff would pay his.
It was also proved that, on a former occasion, the defendant presented a bill for a larger amount, upon which bill he credited the bill of the plaintiff, leaving a balance in the defendant’s favor. There was evidence offered by the defendant, contradicting the statement of the plaintiff’s witness as to what was said by the defendant at the interview already mentioned. The court found for the plaintiff for the full amount of his bill. The question submitted is, whether there was evidence to support the judgment so entered.
The plaintiff contends that it can be supported upon either of two grounds. He insists, in the first place, that there was evidence to prove an account stated; he insists, secondly, that there was evidence that goods were sold to the defendant, and that the judgment can be sustained by regarding the state of demand as amended to one for goods sold and delivered.
First, then, can the judgment be supported upon the theory that there was proven an account stated ? It is apparent, from an examination of the course of decisions touching what will and what will not amount to an account stated, that the courts have drifted away from t-he original standard of a stated account. An account stated originally presented to the legal mind the idea of mutual accounts and of a balance struck by a comparison of such accounts made by the respective creditors. Such au account stated involved an agreement in respect to the items in such account which were to be allowed, and sc implied au assent to the correctness of a balance found to be. [451]*451due against one of such creditors. 3 Bl. Com. 162; Baa. Air., tit. “Assumpsit,” A.
Blackburn, J., in Laycock v. Pickles, 4 Best. & S. 502, remarked : “ There is a real account stated called in old law an insimul computassent; that is to say, when several items of a claim are brought into account on either side and being set against one another the balance is struck and the consideration for the payment of the balance is the discharge of the items •on each side.”
But it now seems to be entirely settled, that it is not essential that there should be mutual or counter accounts between the parties to support an action for an account stated.
A bill of items rendered, or even a single item presented to a party and acknowledged to be correct, will constitute such an account.
Thus, an admission that a certain sum was agreed to be paid for standing trees, made after the trees were felled and carried away, was held evidence of an account stated. Knowles v. Michel, 13 East 244.
So proof of an acknowledgment by an endorsee of his liability upon a bill of exchange will support a count for an account stated, though it is a single item of indebtedness. Highmire v. Primrose, 4 Mau. & Sel. 65.
But it seems obvious that, whether the subject matter of the agreement is an unilateral account, or comprises mutual accounts, there must be an acknowledgment of the correctness of the footing, if it is composed of several items, or the correctness of a single item, if it consists of but one. There must be a promise to pay a single sum, whether sucli sum is the single item pi’esented or is the totality of all the items admitted to be correct, or is the balance remaining after the mutual application in payment of each other of such items of counter accounts as are mutually admitted to be correct. Volkenny v. DeGraaf, 81 N. Y. 268; Bass v. Bass, 8 Pick. 187.
Form of a count upon an account stated. 2 Chit. PI. 90.
[452]*452The promise to pay may be express or implied. The comparison of accounts and the settling upon a balance is an implied promise on the part of him against whom it is found that he will pay it. Chit. Coni. 599; Add. Cont., § 1425; Cochran v. Allen, 58 N. H. 250.
The silent retention, for any unreasonable time, of a bill rendered, will, under certain circumstances, impress upon it the character of an account stated. Thus, Judge Elmer, in delivering the opinion of the Court of Errors, in Brown v. Van Dyke, remarked: “Between merchants at home an account which has been presented and no objection made thereto after the lapse of several posts, is treated, under ordinary circumstances, as being by acquiescence, a stated account.” Brown v. Van Dyke, 4 Halst. Ch. 795, 801.
So it appears that an assent to the balance of the sum total of the account need not be expressed in any formal undertaking, but, from acquiescence in the claim, it may be inferred that the account is correct, and that the sum total is due. But any such assent, whether express or implied, must not be qualified by any condition or contingency which relieves it from the character of a promise to pay the amount. Thus, in the case of Evans v. Verity, Ry. & M. 239, the plaintiff, in conversation with the defendant, said, “ Pay me the 10 pounds you owe me,” and the defendant replied that he would, provided the plaintiff had not moved the grates, which he considered fixtures. The plaintiff was non-suited, Littledale, J., remarking: “ The plaintiff does not prove a consideration on which the defendant became indebted to him but insists on his right to recover upon his admission of liability made by the defendant on a statement of the account between them. If the whole conversation be taken together, it appears to me that there was no admission of liability.” In this case, the court in banc, in refusing to set aside the non-suit, said: “ It is not an unqualified acknowledgment but only an admission that ten pounds would have been due if something else had not happened.”'
[453]*453In Culvert v. Baker, 4 Mees. & W. 417, a promise to pay a bill of exchange at home, but not at the banking house at which it had been drawn, was held not to amount to an unconditional promise to pay.
The question presented now is the following: Was there such unqualified assent to the correctness of the bill presented and such a promise to pay it as will support a demand for an account stated? The testimony of the plaintiff is, that the defendant refused to pay the bill because the plaintiff owed him a larger bill, but he stated that he would pay the plaintiff’s bill if the plaintiff would pay his.
It is now insisted by the counsel for the plaintiff, that the defendant’s claim was a set-off, and that the effect of his acknowledgment of the correctness of the plaintiff’s bill is not defeated by his coupling with such assent an assertion of the right to set-off against it a counter claim.
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[450]*450The opinion of the court was delivered by
Reed, J.
It appears from the state of .the case agreed upon, that the plaintiff grounded his right of action upon an account stated between himself and the defendant. ■
The plaintiff, through his agent, presented a bill to the defendant, and there is testimony going to show that the defendant admitted that the bill was correct, but refused to pay it because he claimed that the plaintiff owed him a bill for a larger amount, but he stated that he would pay the plaintiff the bill if plaintiff would pay his.
It was also proved that, on a former occasion, the defendant presented a bill for a larger amount, upon which bill he credited the bill of the plaintiff, leaving a balance in the defendant’s favor. There was evidence offered by the defendant, contradicting the statement of the plaintiff’s witness as to what was said by the defendant at the interview already mentioned. The court found for the plaintiff for the full amount of his bill. The question submitted is, whether there was evidence to support the judgment so entered.
The plaintiff contends that it can be supported upon either of two grounds. He insists, in the first place, that there was evidence to prove an account stated; he insists, secondly, that there was evidence that goods were sold to the defendant, and that the judgment can be sustained by regarding the state of demand as amended to one for goods sold and delivered.
First, then, can the judgment be supported upon the theory that there was proven an account stated ? It is apparent, from an examination of the course of decisions touching what will and what will not amount to an account stated, that the courts have drifted away from t-he original standard of a stated account. An account stated originally presented to the legal mind the idea of mutual accounts and of a balance struck by a comparison of such accounts made by the respective creditors. Such au account stated involved an agreement in respect to the items in such account which were to be allowed, and sc implied au assent to the correctness of a balance found to be. [451]*451due against one of such creditors. 3 Bl. Com. 162; Baa. Air., tit. “Assumpsit,” A.
Blackburn, J., in Laycock v. Pickles, 4 Best. & S. 502, remarked : “ There is a real account stated called in old law an insimul computassent; that is to say, when several items of a claim are brought into account on either side and being set against one another the balance is struck and the consideration for the payment of the balance is the discharge of the items •on each side.”
But it now seems to be entirely settled, that it is not essential that there should be mutual or counter accounts between the parties to support an action for an account stated.
A bill of items rendered, or even a single item presented to a party and acknowledged to be correct, will constitute such an account.
Thus, an admission that a certain sum was agreed to be paid for standing trees, made after the trees were felled and carried away, was held evidence of an account stated. Knowles v. Michel, 13 East 244.
So proof of an acknowledgment by an endorsee of his liability upon a bill of exchange will support a count for an account stated, though it is a single item of indebtedness. Highmire v. Primrose, 4 Mau. & Sel. 65.
But it seems obvious that, whether the subject matter of the agreement is an unilateral account, or comprises mutual accounts, there must be an acknowledgment of the correctness of the footing, if it is composed of several items, or the correctness of a single item, if it consists of but one. There must be a promise to pay a single sum, whether sucli sum is the single item pi’esented or is the totality of all the items admitted to be correct, or is the balance remaining after the mutual application in payment of each other of such items of counter accounts as are mutually admitted to be correct. Volkenny v. DeGraaf, 81 N. Y. 268; Bass v. Bass, 8 Pick. 187.
Form of a count upon an account stated. 2 Chit. PI. 90.
[452]*452The promise to pay may be express or implied. The comparison of accounts and the settling upon a balance is an implied promise on the part of him against whom it is found that he will pay it. Chit. Coni. 599; Add. Cont., § 1425; Cochran v. Allen, 58 N. H. 250.
The silent retention, for any unreasonable time, of a bill rendered, will, under certain circumstances, impress upon it the character of an account stated. Thus, Judge Elmer, in delivering the opinion of the Court of Errors, in Brown v. Van Dyke, remarked: “Between merchants at home an account which has been presented and no objection made thereto after the lapse of several posts, is treated, under ordinary circumstances, as being by acquiescence, a stated account.” Brown v. Van Dyke, 4 Halst. Ch. 795, 801.
So it appears that an assent to the balance of the sum total of the account need not be expressed in any formal undertaking, but, from acquiescence in the claim, it may be inferred that the account is correct, and that the sum total is due. But any such assent, whether express or implied, must not be qualified by any condition or contingency which relieves it from the character of a promise to pay the amount. Thus, in the case of Evans v. Verity, Ry. & M. 239, the plaintiff, in conversation with the defendant, said, “ Pay me the 10 pounds you owe me,” and the defendant replied that he would, provided the plaintiff had not moved the grates, which he considered fixtures. The plaintiff was non-suited, Littledale, J., remarking: “ The plaintiff does not prove a consideration on which the defendant became indebted to him but insists on his right to recover upon his admission of liability made by the defendant on a statement of the account between them. If the whole conversation be taken together, it appears to me that there was no admission of liability.” In this case, the court in banc, in refusing to set aside the non-suit, said: “ It is not an unqualified acknowledgment but only an admission that ten pounds would have been due if something else had not happened.”'
[453]*453In Culvert v. Baker, 4 Mees. & W. 417, a promise to pay a bill of exchange at home, but not at the banking house at which it had been drawn, was held not to amount to an unconditional promise to pay.
The question presented now is the following: Was there such unqualified assent to the correctness of the bill presented and such a promise to pay it as will support a demand for an account stated? The testimony of the plaintiff is, that the defendant refused to pay the bill because the plaintiff owed him a larger bill, but he stated that he would pay the plaintiff’s bill if the plaintiff would pay his.
It is now insisted by the counsel for the plaintiff, that the defendant’s claim was a set-off, and that the effect of his acknowledgment of the correctness of the plaintiff’s bill is not defeated by his coupling with such assent an assertion of the right to set-off against it a counter claim. There is, undoubtedly, authority for the doctrine that, where the correctness of the account presented is admitted, it will amount to an account stated, although the person so acknowledging its accuracy insists that he has an offset. It was so ruled in the case of Tiler v. Peebles, 8 N. H. 226, upon the authority of the case ■of Styart v. Rowland, 1 Show. 215.
In view of the character of an account stated which has grown up by judicial decisions, I think it is true, that where parties get together and reduce an account to a balance by agreement, that such balance may amount to an account stated, although there may exist some outstanding independent claim which one of the parties, at the time, signifies his intention to produce as an offset against the balance, or as a demand in addition to the balance so agreed upon. But this can be so only when such unconsidered demand is an independent matter, having no connection with or relation to the subject matter, the items of which are resolved into a sum certain by the agreement of the parties.
The notion that there can be an account stated of certain items of the account, while other items of the same account .are questioned and left open for further adjustment or litiga[454]*454tion, as was held in a case decided in the English Court of Common Pleas (Cressman v. Hawley, 2 Scott N. R. 569), cannot be supported upon any rational view of the nature of an account stated. It confounds every admission with an account-stated. ■
The facts surrounding the admissions in the present case,, the evidence of the defendant on the trial, disclosed the fact-that the defendant claimed that the plaintiff’s bill was not-owing to him, because he, the defendant, was entitled, not-merely to reduce such bill, but to exhaust it by reason of other transactions which grew out of their dealings touching the same subject matter. The assent was, therefore, so qualified as to deprive it of the character of an account stated, and the judgment cannot stand upon this ground.
But the plaintiff secondly insists, that the judgment can be-supported by viewing the state of demand as one counting for goods sold and delivered.
The cause, however, was tried below upon a different theory.. The counsel for the defendant obviously shaped his client’s-cause in accordance with the demand as filed. No amendment was asked for at the time of the trial, and, under the circumstances, the court should not exercise its power to order-an amendment here.
The judgment below is reversed, with costs.