Implied Contracts (Money Had and Received). officer had wrongfully seized, under a fi. fa. against A., a horse CH. III. s. 3, belonging to B. The horse was sold by the sheriff, and the money paid over to the officer. B. brought an action for money had and received against the officer, to recover the amount; and the case she proved was, that the horse had belonged to her husband, and that Action against after his death she had provided for its keep; but no letters of administration were produced; and yet it was held, that there was sufficient evidence to entitle her to recover. So, if the sheriff seize and sell goods under a fi. fa., and pay the proceeds of the sale to the execution creditor, after notice of an act of bankruptcy committed by the debtor, his trustee may sue the sheriff for money had and received (e). And it has been held, that if the sheriff pay over the money upon an indemnity, this is equivalent to his having had notice of the act of bankruptcy (ƒ). sheriff-contd. under-sheriff's An action has been held to lie against the executors of an under- Action against sheriff for non-payment of the proceeds of an execution, as money executors. had and received, although the torts of the under-sheriff had not been warded (g). SECT. 4.-The implied Contract to pay Money found Due on Wherever there is an admission by one party, against whom another has a set of money claims, that there is a balance due from him to the other, there arises from such admission a contract to pay the balance on request (h), and the admission is called shortly, "account stated." An admission is essential; the mere act of a tradesman in sending in his bill is not enough. be stated with or claim. It is not necessary, in order to support a claim upon an account Account must stated, to show the nature of the original debt, or to prove the reference to specific items constituting the account. But it must appear that, existing debt at the time of the accounting, certain claims existed, of and concerning which an account was stated (i); that a balance was then struck and agreed upon (k); and that the defendant expressly admitted that a certain sum was then due from him as a debt (1). (e) Notley v. Buck (1828), 8 B. & C. 160. (f) Young v. Marshall (1831), 8 Bing. 43. (g) Gloucestershire Banking Company . Edwards (1887), 20 Q. B. D. 107, C. A. (h) See Hopkins v. Logan (1839), 5 M. & W. 241. (i) Per Blackburn, J., Laycock v. Pickles (1863), 4 B. & S. 497, 501. (k) Trueman v. Hurst (1785), 1 T. R. 40; Prouting v. Hammond (1819), 8 Taunt. 688. (1) Lane v. Hill (1852), 18 Q. B. 252; and see Barker v. Birt (1842), 10 M. & W. 61. CH. III. s. 4. Implied Contracts (Account Stated). There need not be cross demands. With whom to be stated. At what time. Nature of evi Hence it follows, that an account cannot be stated with reference to a debt payable on a contingency (m). · But it is said that where there are cross demands, it is not necessary that the items should consist of debts due in præsenti, or that they should be legal debts; but that equitable claims may also be brought into the account (n). Where, however, the account is stated with reference to only one item, that item must consist of a debt then due and owing (o). Nor is it essential that there should be cross or reciprocal demands between the parties, or that the defendant's acknowledgment that a certain sum was due from him to the plaintiff, should relate to more than a single debt or transaction (p). And, therefore, an admission by the defendant, that so much was agreed to be paid to the plaintiff for the sale of standing trees, made after the trees had been felled and taken away by the defendant, will support a claim upon an account stated (q). Evidence of an accounting with the agent of the plaintiff, or with his wife (r), is sufficient to support this claim. But evidence of an acknowledgment of a debt, in a conversation with a stranger, is not sufficient (s). So it appears doubtful, whether evidence of an accounting with the agent of an unknown principal, would support a claim against the principal, as on an account stated with him (t); or whether evidence of an accounting with a person of non-sane mind, would entitle him or his representative to recover on such claim (u). And a claim by husband and wife, on an account stated, is not maintainable, unless the accounting was concerning matters in which the wife had an interest (x). It must likewise appear, that the accounting took place before action brought (y). The production by the plaintiff of an I O U, is primâ facie dence required evidence that an account has been stated by the defendant with to support. him, although no name is mentioned in the instrument (z); and a bill of exchange or promissory note is evidence of an account stated, as between the immediate parties thereto (a). So, a promise by (m) See Baker v. Heard (1850), 5 Exch. 959, 966. (n) Per Blackburn, J., Laycock v. Pickles (1863), 4 B. & S. 497, 506. (0) Lemere v. Elliott (1861), 6 H. & N. 656; per Parke and Alderson, BB., Gough v. Findon (1851), 7 Exch. 48, 50, 51: Lubbock v. Tribe (1838), 3 M. & W. 607; Tucker v. Barrow (1828), 7 B. & C. 623. (p) Highmore v. Primrose (1816), 5 M. & S. 65. (q) Knowles v. Michel (1811), 13 East, 249. (r) Bul. N. P. 129. (s) Breckon v. Smith (1834), 1 A. & E. 488. (1) Baynham v. Holt (1844), 8 Jur. 963. (u) See Tarbuck v. Bispham (1836), 2 M. & W. 2, 8. (x) Johnson v. Lucas (1853), 1 E. & B. 659. (y) Per Littledale, J., Spencer v. Parry (1835), 3 A. & E. 331, 332; Allen v. Cook (1834), 2 Dowl. 546. (z) Fesenmeyer v. Adcock (1847), 16 M. & W. 449, 450; Curtis v. Rickards (1840), 1 Scott, N. R. 155. (a) Burmester v. Hogarth (1843), 11 Implied Contracts (Account Stated). the drawer of an over-due bill, to pay an indorsee and holder the CH. III. s. 4. amount thereof, is evidence of an account stated between these parties (b). But in such a case the plaintiff must show, that the defendant admitted that the amount acknowledged to be in arrear was actually due to him, the plaintiff; or he must show an admission by the defendant, that he was liable for the specified amount to the legal holder of the bill, and prove that he, the plaintiff, is the holder thereof (c). claimed by plaintiff in a character. If the plaintiff prove an accounting with the defendant, but it When debt appears that the debt, which was the subject thereof, was not due from the defendant in his own right, nor to the plaintiff in his own particular right, the claim on an account stated will fail (d). And so, on the other hand, if the plaintiff claim upon an account stated with him in a representative character, for instance, as executor, it must appear that the defendant admitted that the debt was due to the plaintiff in that character (e). must admit a certain due. It is further necessary, in order to support this action, to show, Defendant not only that the defendant admitted a debt, but also that, expressly or by reference, he acknowledged that some certain amount of amount to be money was due from him (f). Thus, a letter written and sent by the defendant to the plaintiff in these words:-"I must request you to oblige me by holding my cheque till Monday, and, in the interim, I will send you the amount in cash":―was held, by the majority of judges of the Court of Queen's Bench, not to be evidence of an account stated, so as to entitle the plaintiff even to nominal damages (g). So a mere conjecture expressed by one party to another, as to a certain sum being due to the latter, affords no proof of an account stated, unless it be adopted by the latter (h). Nor will this claim be supported by proving a mere offer by the defendant, to pay a sum of money to the plaintiff, unaccompanied by any admission that there was a debt due to the latter (i). But where, in answer to a letter written to him by the plaintiff's solicitor, demanding payment of a specific sum, the defendant wrote "I will call at your office in the early part of next week, and hope to make some satisfactory arrangement for the payment M. & W. 97, 101, 102; and see Fryer v. b) Oliver v. Dovatt (1839), 2 Moo. & Rob. 230. (c) Jardine v. Payne (1831), 1 B. & Ad. 663. (d) Petch v. Lyon (1846), 9 Q. B. 147. (e) See Green v. Davies (1825), 4 B. &C. 235; Tucker v. Barrow (1828), 7 CH. III. s. 4. (Account Admission of plaintiff's title. So, in cases within the Statute of Frauds, the plaintiff will not be entitled to recover on the account stated, if it be shown that the account was stated at a time when the case stood wholly upon the original contract (z). And where a sum of money is secured by deed, and a balance is struck for the purpose of ascertaining how much remains due thereon, an action on an account stated will not lie; even although the obligor admits the correctness of the account, and promises to pay such balance (a). Nor is an award evidence of an account stated, as between the parties to the submission (b). The stating of an account may amount to an admission of the title of the party with whom the account is stated, to receive the money. Thus, where the defendant agreed verbally with the plaintiff to take a house and purchase the fixtures, at a valuation to be made by two brokers; and an inventory of the furniture and fixtures was accordingly made, which was described generally as "An inventory of the fixtures," &c., with the gross amount placed at the foot thereof: it was held that the defendant, having taken possession of the furniture and fixtures, and paid part of the amount of the valuation, was liable for the remainder, as on an account stated, and could not object that the plaintiff's title to the house was defective (c). Statement of The statement of an account, however, is not conclusive, but an account is only presumponly presumptive evidence against the party admitting the balance tive evidence. to be against him (d),—there being, as has been said, no rule of law which precludes a man from disputing, accounting for, or explaining, any particular item of such an account (e). But where parties having cross demands, settle and balance their accounts,— notwithstanding that part of the plaintiff's demand could not have been recovered by action, the settlement of the accounts binds the defendant, so that he cannot set up that defence when sued for the balance (ƒ). Fraud. The discovery of a fraud after account stated is good ground for questioning the items (g). (1835), 2 Scott, 199, 203; Thomas v. Hawkes (1841), 8 M. & W. 140; Wilson v. Wilson (1854), 14 C. B. 616. See, in general, on the right of a party to explain or qualify an admission, Baildon v. Walton (1847), 1 Exch. 617. (f) Dawson v. Remnant (1806), 6 Esp. 24; and see Laycock v. Pickles (1863), B. & S. 497. (g) Vaglianov. Bank of England (1889), 22 Q. B. D. at p. 127, per Charles, J. (99) CHAPTER IV. OF THE FORM OF A SIMPLE CONTRACT, AND THE STATUTE when neces THERE cannot be a deed without writing (a); but, as a general Writing rule, a simple contract need not be reduced into writing. Where sary. the law makes no special provision to the contrary-where written evidence of the contract or promise is not expressly required—such contract or promise is valid, though it be verbal only. Frauds. By the Statute of Frauds, however, contracts for the sale of land Statute of and other contracts mentioned therein (b); by the Merchant Shipping Act, 1894, contracts for the sale or transfer of registered Ships. ships, or shares therein (c); and by the Stamp Act, 1891, contracts of sea insurance (d), writing is rendered essential by statute. So, by the Copyright Act, 1842, the sale or assignment of a copyright Copyright. must be in writing (e). And the promise of a debtor to pay a debt barred by the Statute of Limitations is void, unless it be in writing and signed by the party (ƒ). exchange. So by the Bills of Exchange Act, 1882, s. 3, giving effect to the Bill of custom of merchants, bills of exchange and promissory notes, and other negotiable instruments must be reduced into writing, and signed by the parties thereto. We have already observed that, to constitute a valid agreement Contents of a simple not under seal, there must be the mutual and definitive assent of contract in both parties to the terms of the agreement; and that the agreewriting. ment itself must be founded on a good consideration. And we now remark, further, that where the contract is required by the Statute of Frauds to be in writing, it is essential-except in the case of guarantees "to answer for the debt, default or miscarriage (a) Ante. p. 3. (b) 29 Car. 2, c. 3, s. 4, p. 102, post. (e) 57 & 58 Vict. c. 60, s. 24. (d) 54 & 55 Vict. c. 39, s. 93. (e) 5 & 6 Vict. c. 45. (f) 9 Geo. 4, c. 14, s. 1. |