1 Campb. 552; Cro. Eliz. 920; 12 Mod. 517; 6 Esp. 24; 1 Sel. N. P. 130; Chit. on Bills, 16. 97. 2. DAWSON V. REMNANT. H. T. 1806. 6 Esp. 24. demands, and a tion could not The declaration contained counts for goods sold and delivered, After an adjustwith a count on an account stated. Plea, general issue, with notice ment of mutual of set-off. The action, it appeared, was brought to recover 8l. 15s. balance struck, the balance of an account; the defendant endeavoured to reduce the it cannot be obamount 51. by proving that the demand was for spirituous liquors jected that part delivered at different times in less quantities than the value of 20s. of the plaintiff's and, therefore, according to the stat. 24 Geo. 2. st. 12. not recoverable. demand was that The plaintiff, to defeat this objection, proved that the defendant had for which an ac.. done work for him as a plumber, and that they had mutually ad- have been origijusted their claims, and that this action was brought for the balance. nally supported. Per Mansfield, C. J. As credit has been given for the amount of the spirits sold in quantities under the value of 20s. in the settling of the accounts between these parties, I think, in an action for the recovery of an ascertained balance, these items cannot be disputed. The plaintiff is therefore entitled to a verdict. Verdict for plaintiff. See Spencer v. Smith, 3 Campb. 10; Scott v. Gilmore, 3 Taunt. 226; Burnylat v. Hutchinson, 5 B. & A. 241. 3. PEACOCK V. HARRIS. T. T. 1808. K. B. 10 East, 104. Declaration in assumpsit by the plaintiff, as collector or renter of A defendant, turnpike tolls, with a count on an account stated. Plea, general after accounting issue. At the trial it appeared in evidence, that the plaintiff had with the plainmade out an account of what was due to him from the defendant, with a particular tiff, as invested and that such bill had been duly delivered to the defendant, and on character, and the receipt of it he had remitted a sum of money in part payment, and receiving credit had promised to pay the remainder in the ensuing week. It was from him in urged, on the part of the defendant, that the appointment of the that capacity, is estopped from plaintiff had, in several respects, been irregular, and inconsistent with disputing his tithe local act by which the tolls were granted, and that some of the tle to the particucharges were unauthorized by the legislature. A verdict was found lar character. for the plaintiff, with liberty to move to enter a nonsuit; but after a rule had been granted, and cause shown, it was held, Per Cur. The evidence of an account having been stated between these parties is amply sufficient to warrant the opinion we have formed. The letter in which part of the money was enclosed states that the plaintiff shall have the remainder next week; these words manifestly had reference to some account previously adjusted and settled. It was for the jury to determine whether the letter did or did not allude to the account delivered by the plaintiff'; they have found that it did. On this conclusion another point, as a necessary corollary, is established; that as neither the trustees nor the creditors of the turnpike have taken any objection to the plaintiff's bill, the defendant, a third person, cannot be permitted to do so after having treated with him as a person legally entitled to receive tolls, and having actually settled an account with him for the amount. This recognition of the plaintiff's right to the character he has assumed is conclusive against the defendant. Rule discharged. Under a count on an account stated, where there has been a mixed valua tion of goods and fixtures, the price of the latter may be recovered. An instrument purporting to be a promissory note, but impro 4. SALMON V. WATSON. M. T. 1819. C. P. 4 B. Moore, 73. This was an action for goods sold and delivered, with a count on an account stated. It appeared that the defendant had agreed verbally with the plaintiff to take a house, and purchase the fixtures, at a valuation to be made by two brokers; and that he had afterwards agreed to take part of the furniture; and that an inventory of the furniture and fixtures was accordingly made, described generally as "An inventory of the fixtures," &c. with the gross amount placed at the foot of that document. The defendant subsequently took possession of the house, and enjoyed the use of the fixtures and furniture, and paid part of the sum at which they were valued by the brokers. For the defendant it was contended, that the plaintiff was not entitled to recover on the authority of the case of Lee v. Risdon, 2 Marsh 495. where it was decided, that an action for goods sold and delivered would not lie for fixtures, and, consequently, that the plaintiff could not resort to the counts for goods sold, and that he must be bound by the inventory in which the brokers had made their valuation for fixtures, and that consequently the contract was entire, and that he could not go for less than the whole of the amount of the valuation; and as the greater part of that sum was for fixtures, he could not recover for the furniture, which formed the other part of the inventory. For the plaintiff it was insisted, that he had a right to recover for all the articles of furniture which it was proved the defendant had taken possession of, and which could not come under the denomination of fixtures; that although the brokers had included certain articles of furniture as fixtures in the inventory, that could not change their character, but that the different descriptions of furniture and fixtures were to be taken according to their avowed import; and that the furniture not having been included in the agreement at the time the house was taken, but a matter of subsequent purchase, for which the defendant should pay, without any reference to the fixtures, and for which the plaintiff was entitled to a distinct action for goods sold and delivered, and that he could not be deprived of his right to recover by the mistake of the brokers; that the contract, as well for the fixtures as the furniture, was executed; and that as the defendant was in possession of both, the plaintiff might recover for the fixtures on the count for an account stated. Per Cur. There appears to be no little difficulty in separating the articles of furniture from the fixtures, as valued by the brokers in this inventory; still, however, we are of opinion that the plaintiff's case may be supported on the account stated, especially as the defendant has had the enjoyment of the property, and paid a sum in part liquidation of the amount at which it was valued. 5. BARLOW V. BROADHURST. T. T. 1820. C. P. 4 Moore, 471. In assumpsit, the declaration set out an instrument, purporting perly stamped, is admissible in to be a promissory note, which, after reciting that the defendant had evidence under a been awarded to pay 500l. to the representatives of A. B. and that count on an ac- he had paid him 100l. in his life-time, and thereby promised to pay count stated. his representatives the remainder three months after his death, pursuant to the award, first deducting any interest or money which he (the testator) might owe to the defendant on any account. The plaintiff then averred the testator's death, and that they became his executors; the declaration likewise contained the usual money counts, and account stated. Plea, non assumpsit. On the trial it appeared that this instrument was not properly stamped; and the question arose, whether it could be received in evidence under the count upon an account stated. Per Cur. This instrument could not have been declared on as a promissory note; it is not for the payment of a fixed and definite sum of money, but subject to deductions, which must rest entirely on contingency. The facts disclosed in the declaration alone show that there was an account stated between the defendant and the testator; the recital in the note demonstrate that it was given to secure the payment of a larger sum of money, which is a direct admission by the defendant that a sum of money, as a balance, was due from him to the testator. We are, therefore, of opinion, that this memorandum might be admitted in evidence under the account stated, though improperly stamped as a note. See Watkins v. Hewlett, 3 B. Moore, 211; Chit. on Bills, 363. 367. IV. PLEADINGS CONNECTED WITH. 1. SPACKMAN V. HUSSEY. E. T. 1722. K. B. 8 Mod. 77. The plaintiff declared, in the Marshal's Court, on an insimul com- In an inferior putasset infra jurisdictionem, &c. and obtained judgment; and upon court, alleging a motion being made to set it aside, on the ground that the account in the declaradid not alter the duty, for that may arise in York, and no other consideration being stated to entitle the Court to jurisdiction, the judg- indebted upon ment ought to be reversed. Per Cur. The account alone was sufficient to give the Court jurisdiction. a See 2 Ld. Raym. 1555; Stra. 827; 6 Mod. 223; 2 Show. 546; 1 Ld. Raym. 211; Comp. 20; 2 Wils. 16; 1 T. R. 151; 6 T. R. 764; 8 T. R. 127; 1 Saund. 73-4. 2. ANON. H. T. 1728. K. B. Fitzgib. 44. tion that the defendant became an account stated within the jurisdiction is sufficient; sed qu. account was On a writ of error brought on a judgment given in an inferior And it suffices court in assumpsit, the plaintiff declared that there having been an to allege that an account between him and the defendant, and the defendant having stated within the become indebted to him in several sums of money within the jurisdiction, jurisdiction of the Court, had mutually accounted together, and without averring that on the account stated, it appeared that the defendant was that the items of indebted to the plaintiff in such a sum, which he promised to pay the plaintiff, &c. The error insisted on was, that the cause of action arose where the consideration, to wit, the valore recepto, was received, and, in the account accrued there. A plea that the parties stated an account, and mutually agreed to be quit one against the other, except as to the balance, is bad, as it amounts to the general issue. So if it states generally that they accounted. The plaintiff will not be obliged, in support of the this case, the same not being laid to be infra jurisdictionem curiæ, the judgment is erroneous; for nothing shall be intended to be within the jurisdiction of an inferior court but what is specially alleged, and laid so to be; hence, this contract not being laid to be made infra jurisdictionem curia, the judgment ought to be reversed. The defendant's counsel argued, that it was not necessary to lay a venue for the valore recepto, and therefore it need not be laid infra jurisdict. In the present case the promise was for several sums of money which became due within the jurisdiction of the inferior court, and which were ascertained by stating the account between the plaintiff and the defendant; and a venue is laid for the defendant within the jurisdiction of the inferior court, where the action was brought. Per Cur. If the valore recepto, which arose on stating the account here, is a new cause of action arising, which should have been laid infra jurisdiction. &c. ; but it does not; and therefore the promise was brought for the original debt, which is laid to arise within the jurisdiction of the court; and therefore the judgment must be affirmed. 3. MAY V. KING. E. T. 1698. K. B. 1 Ld. Raym. 680; S. C. 12 Mod. 537. To an action of assumpsit for 50l. the defendant pleaded that he had come to an account with the plaintiff, and that on such account the plaintiff was found to be in arrear, and indebted to him in the sum of 5s.; and that on the settlement of the account it was mutually agreed between them, that they should be each discharged from any liability, except the 5s. The plaintiff demurred; and excepted to the plea, on the ground of its being equivalent to the general issue. Per Cur. This plea is bad; the matter disclosed in it ought not to have been pleaded specially; it is in effect the general issue, and might have been given in evidence under non assumpsit. The plea was waved by consent, and the defendant pleaded de novo. See 3 Bl. Com. 309; Com. Dig. Pleader, E. 13. 14; Bac. Ab. Pleas, G. 3; 6 East, 597; 8 East, 313; 1 Saund. 228. c; Hob. 127 ; 1 Leon. 178; 2 Rol. Rep. 140; Doct. Pl. 140; 3 Lev. 40. 4. ROLLS V. BARNES. M. T. 1756. C. P. 1 Bl. Rep. 65. It was held by the Court, on the authority of Adderley and Evans, H. 29 Geo. 2. that insimul computasset was not a good plea in bar to an action on assumpsit; for, though true, it does not extinguish the original promise on which the action is founded. V. PROOF OF. BARTLETT V. EMERY. H. T. 1728. K. B. Cited 1 T. R. 42. n. In arguing this case upon a writ of error out of the Court of Litchcount on an ac- field, Raymond, C. J. Page and Reynolds, J. agreed, that on an count stated, to insimul computasset the plaintiff is not obliged to give evidence of the give evidence of several items constituting the account, but it is sufficient if he prove the account stated, for that it is the cause of the action. the several items constituting the account. See Bul. N. P. 129. 2. KNOWLES AND OTHERS V. MICHEL AND ANOTHER. H. T. 1811. In this case it appeared that the plaintiffs had sold to the defend- An admission ants some standing trees, which the defendants afterwards procured by the defendto be felled and taken away; and both the defendants had admitted that ant that he had bought standing they had bought the trees for nine guineas; and one of them said he trees of the would only pay one-half. An action of assumpsit was brought upon plaintiff for a the common counts, for goods sold and delivered, the money counts, certain sum, and and upon an account stated. The plaintiff was nonsuited; on the carried them objection that the evidence did not support the action, the contract away, will supbeing for standing trees, which were part of the realty. A rule nisi was granted to set aside the nonsuit. Per Cur. The acknowledgment of the price to be paid for the trees being made after they were felled and applied to the use of the defendants, is sufficient to sustain an action on an account stated, notwithstanding there is no other item of account between the parties. Rule absolute. 3. HIGHMORE V. PRIMROSE. E. T. 1816. K. B. 5 M. & S. 65. port a count upon an account stated. action upon an account stated. On a rule to show cause why a verdict should not be set aside and Proof of one a nonsuit entered, it appeared that the action had been brought on a item is sufficient bill of exchange, the declaration containing a count on the bill, the to maintain an money count and an account. stated, to which the defendant had pleaded the general issue. It was contended that the bill being misdescribed in the declaration, the mere proof that the defendant had admitted his liability on the bill, upon being applied to for payment, was not sufficient evidence to support the count upon an account stated, the defendant's admission being exclusively confined to that item. Per Cur. Although the bill is misdescribed in the declaration, yet the plaintiff is entitled to recover under the account stated, for the case of Knowles v. Michel, vide supra, has expressly determined that point. Now there seems to us to be no reason why an account should not be stated, consisting of one item only, as well as of plurality; the language of the plea being " of and concerning divers sums of money" makes no difference; " divers" may be supported by proof of one item. We are, therefore, of opinion, that the plaintiff is entitled to retain his verdict. Rule discharged. See Grant v. Da Costa, 3 M. & S. 351; Bartlett v. Emery, 1 T. R. 42. n; Dalby v. Cook, Cro. Jac. 234; Thompson v. Spencer, Bul. N. P. 129. 4. TEALL V. AUTY. T. T. 1820. C. P. 4 Moore, 543; S. C. 2 B. & B. Evidence of an 99. Action of assumpsit to recover the balance of an account for timber or trees; the declaration contained counts for goods sold, money, and account stated. Plea, general issue, non assumpsit. At the trial it appeared in evidence, that at the time of the sale of the timber a memorandum was made of the bargain, but it was neither stamped nor signed by either of the parties. A witness admission that a balance is due to the plaintiff, without proving a fixed and defi nite sum, will not support a count on an account stated. |