Contracts implied There are some cases where, it being established upon from pre- other grounds that a debt already exists between the parties, viously ex- the law implies a new contract to pay it for the purpose of istingdebts. supplying an additional or more convenient remedy. Such contracts are implied : Account stated. Admission of debt of certain amount. : Where an executory simple contract has been completely performed, except leaving a present money debt payable under it. This contract has been already noticed as arising upon the executed consideration (a). Upon accounts stated. Upon judgments of foreign courts, and other debts created by foreign law. Upon an acknowledgment made by the defendant to the plaintiff of money due from him to the plaintiff, a simple contract to pay it is implied in law, which may be charged as a distinct cause of action, and is described as "for money found to be due from the defendant to the plaintiff on an account stated between them" (b). "An account stated," it is said, "is nothing more than the admission of a balance due from one party to another; and that balance being due there is a debt. The statement of the account and admission of the balance implies a promise in law to pay it" (c). In order to constitute an account stated, there must be a statement of some certain amount of money being due. A letter of the defendant to the effect that he thinks he is indebted in a certain amount is not sufficient (d). An admission by the defendant to the effect merely that he had received a sum of money on account of the plaintiff, and not that it was a subsisting debt, was held insufficient (e). So, the admission of money being due, without specifying expressly or by sufficient reference a definite amount, is not sufficient; and in an action brought upon such admission the plaintiff would not be entitled to recover even nominal (a) See ante, p. 36. (b) Knowles v. Michell, 13 East, 249; Highmore v. Primrose, 5 M. & S. 65; Porter v. Cooper, 1 C. M. & R. 387; Wray v. Milestone, 5 M. & W. 21; and see 2 Wms. Saunders, 122 (c); and the Common Law Pro cedure Act, 1852, 15 & 16 Vict. c. 76, sched. B. (c) Per Lord Abinger, Irving v. Veitch, 3 M. & W. 90, 106. (d) Hughes v. Thorpe, 5 M. & W. 656. (e) Tucker v. Barrow, 7 B. & C.623. damages (a). So, an admission of liability to a claim for unliquidated damages, as the liability of a surety, will not support an account stated (b). The plaintiff having demanded a certain sum from the defendant in respect of an asserted claim, the defendant offered to pay a smaller sum; it was held that such offer was not an acknowledgment of a debt on which an account stated could be founded (c). The defendant, having been shown an account of the plaintiff containing several items, objected to one item only; it was held that there was evidence of an account stated by him as to the items not objected to (d). The defendant, having received an account of the plaintiff against him, wrote a letter enclosing £5, and saying he should have the remainder next week, it was held there was evidence of an account stated as to the balance (e). A promissory note dated August 8, 1841, for a sum which was described in the note to be the amount of interest due up to the 6th of July, 1844, on a previous note for a stated amount, was held to be evidence of an account stated respecting the amount of the previous note (ƒ). able in An acknowledgment of a debt payable at a future date, or Debts payin a certain event, also constitutes an account stated, upon future. which however the liability is not absolute until the time of payment has arrived, or the event has happened (y). A bill of exchange or a promissory note, payable at some period after date, operates as an account stated of this kind between immediate parties to it (h). whom ac An admission of debt, in order to constitute an account To and by stated, must be made to the creditor himself or to his agent, count may and is not sufficient if made to a stranger (i); and it must be stated. (a) Teal v. Anty, 2 B. & B. 99; Green v. Davies, 4 B. & C. 235; Kirton v. Wood, 1 M. & Rob. 253; Lane v. Hill, 18 Q. B. 252; 21 L. J. Q. B. 318. (b) Marshall v. Wilson, (Ex. Ch. Ir.) 14 W. R. 699; see Buck v. Hurst, L. Rep. 1 C. P. 297. (c) Wayman v. Hilliard, 7 Bing. 101. (d) Chisman v. Count, 2 M. & G. 307. (e) Peacock v. Harris, 10 East, 104. (f) Perry v. Slade, 8 Q. B. 115. (g) Wheatley v. Williams, 1 M. & W. 533; and see Baker v. Heard, 5 Ex. 959, 966; Calvert v. Baker, 4 M. & W. 417; Burgh v. Legge, 5 M. & W. 418. (h) Wheatley v. Williams, supra, (i) Tucker v. Barrow, 7 B. & C. In what form account may be stated. be made by the defendant himself or by his agent. The award of an arbitrator awarding a sum due will not constitute an account stated, because an arbitrator is not an agent for that purpose (a). The admission of debt, constituting an account stated, may be in writing or by mere oral statement; and the existence of an admission in writing does not exclude evidence of an admission of the same debt made by oral statement (b). A bill of exchange or promissory note is evidence of an account stated between immediate parties to the instrument, but not between remote parties (c); it is not admissible evidence unless properly stamped (d). An I. O. U. is evidence of an account stated with the person to whom it is addressed (e); and if it bears no address, then presumptively with the holder, in the absence of evidence to the contrary (f). An account stated respecting a debt which has not accrued due within six years of the action brought for its recovery, must be in writing signed by the party chargeable thereby, under Lord Tenterden's Act, 9 Geo. IV. c. 14, s. 1, which requires the acknowledgment of debt to be made in that form in order to take the debt out of the operation of the Statute of Limitations (g); but where an account is stated respecting debts on both sides, and it is agreed that the cross demands shall be set off and a balance stated, it is no objection to such account that some of the earlier items were barred by the Statute of Limitations, and that there is no valid acknowledgment within Lord Tenterden's Act, because the agreement to set off operates as payment of the items to which it applies (). A simple contract is not implied in law, as upon an ac (a) Bates v. Townley, 2 Ex. 152. (d) Green v. Davies, 4 B. & C. 235; (e) Jacobs v. Fisher, 1 C. B. 178; Wilson v. Wilson, 14 C. B. 616. (f) Curtis v. Rickards, 1 M. & G. 46; Fesenmayer v. Adcock, 16 M. & W. 449. (g) Jones v. Ryder, 4 M. & W.32; Clark v. Alexander, 8 Scott, N. R. 147; and see Hopkins v. Logan, 5 M. & W. 241, 248; Perryv. Slade, 8 Q. B. 115. (h) Ashby v. James, 11 M. & W. 542; Clark v. Alexander, 8 Scott, N. R. 147, 165. count stated, upon an acknowledgment of money being due under a contract under seal (a); nor upon an acknowledgment made under seal. will sup account An account stated alone is not conclusive, but is merely What debt prima facie evidence of liability in the party admitting the port an debt; and in an action brought upon an account stated, the stated. existence or validity of the debt respecting which it was stated may be disputed. Thus, the defendant charged upon an account stated may obviate its effect by showing that there was a mistake in the statement of the account (b); or that the account was stated upon the supposition that the debt was due, whereas in fact it was not due (c); or that the account was stated respecting a debt not then due, as an I. O. U. given as security for a prospective debt (d); or that the debt was claimed under a contract void for want of consideration (e); or that the debt was claimed under a contract of which the consideration had failed (f); or that the debt stated in the account on which the defendant is charged was not due from the defendant in his own right, or that it was not due to the plaintiff in his own right (g); or that the account was stated in respect of a liability for unliquidated damages, as the liability of a surety for a default of the principal debtor (h). Upon a loan of money, the debtor and a surety signed and delivered to the creditor a document to the effect, "We jointly and severally owe you £-;" it was held to be evidence of an account stated against both, and that the effect of it against the surety was not avoided by showing that he contracted the debt only as surety (i). So, it may be shown that the debt stated in the account. was void because upon an illegal consideration (j); that the account was stated respecting a debt claimed as remuneration for the professional services of a barrister (k); that the (a) Middleditch v. Ellis, 2 Ex. 623. (b) See Trueman v. Hurst, 1 T. R. 40, 42; Thomas v. Hawkes, 8 M. & W. 140; Perry v. Attwood, 6 E. & B. 691; Dails v. Lloyd, 12 Q. B. 531. (c) Gough v. Findon, 7 Ex. 48. (d) Lemere v. Elliott, 6 H. & N. 656; 30 L. J. Ex. 350. (e) French v. French, 2 M. & G. 614. Balance of cross ac counts. Debt within the Statute account was stated respecting a debt claimed for the professional services of an attorney, for which no bill of costs had been delivered (a). Where the plaintiff charges the defendant upon an account stated, founded on an account rendered by the defendant containing items on both sides and striking a balance, the plaintiff may dispute the items entered against him in the account, so as to charge the defendant with the full amount of the items entered in his favour (b); but where an account is stated respecting items on both sides, and an agreement is further made that the items on one side shall be set off against the items on the other, such an agreement respecting the cross demands is equivalent to payment, and extinguishes the debts to the amounts set off against each other (c). Where upon such statement of cross demands a balance is struck and agreed upon, the discharge of the other items is a sufficient consideration to support the debt for the balance, though the account might have contained claims for which an action would not lie (d); and upon such a statement of account, setting off the items against each other, it is no objection to the claim for the admitted balance of the account that some of the items were barred by the Statute of Limitations (e); or that some of the items were due by contract under seal (ƒ). It is no answer to an account stated admitting a debt, of Frauds. that the debt was due under a contract within the Statute of Frauds, of which there was no memorandum in writing, if the consideration for the debt was completely executed at the time of stating the account (g); but if the account was stated before the consideration was executed, the debt, being due under the contract only and not in respect of the exe (a) Scadding v. Eyles, 9 Q. B. 858; 145. (c) Ashby v. James, 11 M. & W. 542; Callander v. Howard, 10 C. B. 290; and see M'Kellar v. Wallace, 8 Moore, P. C. 378, 401; Smith v. Page, 15 M. & W. 683. (d) Laycock v. Pickles, 4 B. & S. 497; 33 L. J. Q. B. 43. (e) Ashby v. James, 11 M. & W. 542; see ante, p. 70. (f) Foster v. Allanson, 2 T. R. 479; and see Middleditch v. Ellis, 2 Ex. 623. (g) Cocking v. Ward, 1 C. B. 858; Knowles v. Michel, 13 East, 249; Seago v. Deane, 4 Bing. 459; and see Laycock v. Pickles, 4 B. & S. 497; 33 L. J. Q. B. 43; Marshall v. Wilson, (Ex. Ch. Ir.) 14 W. R. 699. |