1. An account rendered and not objected to within a reasonable
time, is to be regarded as admitted by the party charged, to be
prima facie correct.
2. If certain items in an account under such circumstances are
objected to within a reasonable time and others not, the latter are
to be regarded as covered by such an admission.
3. What is to be regarded as a reasonable time is, when the
facts are clear, a matter of law. Where the proofs are conflicting,
it is a mixed one of law and fact, and in such cases the court
should instruct the jury upon the several hypotheses of fact
insisted on by the parties.
4. Between merchants at home, an account presented and remaining
unobjected to after the lapse of several posts is treated, under
ordinary circumstances, as being, by acquiescence, a stated
account.
5. But the Court will not take notice judicially of the time
which rail cars require to run between different places, and of the
frequency of the mails between them.
6. Where the bill of exceptions does not purport to set out all
the evidence given in a case below, and it does not appear what
other evidence, if any, was there given, a court of error will not
reverse for an instruction whose correctness or want of it depends
upon the state of the evidence, the terms of the instruction not
necessarily implying that there were not facts in proof bearing
upon the subject besides those of which the instruction was
expressly predicated, and error not being matter to be presumed,
but contrariwise.
MR. JUSTICE SWAYNE stated the case and delivered the opinion of
the Court.
This is a writ of error to the Circuit Court of the United
States for the District of Indiana. The action is assumpsit. The
declaration contained only the common counts. The case, as shown by
the bill of exceptions, is as follows:
Burkham, the plaintiff, lived in Chicago, and the defendants at
Hagerstown, in Indiana, distant from Chicago about 220 miles by
railroad. Upon the trial, evidence was given tending
Page 77 U. S. 130
to prove that the plaintiff,
on or about the 16th of
May, 1866, sent to the defendants by mail a written statement
of the account sued upon, in the nature of an account current, and
that the defendants made no objection to it till on or about
the 28th of that month, when they addressed a letter to
the plaintiff by mail objecting to some items of the account, but
making no objection to others, to which latter items it did not
appear they ever objected until after the commencement of the suit.
The plaintiff asked the court to instruct the jury:
"That when an account is rendered by a creditor to his debtor,
if the debtor does not, within a reasonable time after he has
examined the same, make any objection thereto, his silence
unexplained is an implied admission of the correctness of such
account, though not conclusive evidence thereof, and if the debtor,
within such time, objects to some of the items, and during such
reasonable time makes no objection to the residue of such items, he
ought,
prima facie, to be presumed thereby to admit the
correctness of the items not objected to; and in both the foregoing
instances, the account so in whole or in part admitted is to be
deemed in legal effect an account stated."
This instruction was given. The defendants thereupon asked the
court to instruct as follows:
"That if the plaintiff made out his account on the 16th day of
May, 1866, and then sent it to the defendants, it was within a
reasonable time, if the defendants, on the 28th day of that month,
by letter, notified the plaintiff of their dissatisfaction with
that account."
But the court refused to give the said instruction, and, on the
contrary, then and there instructed the jury:
"That what was reasonable time for a debtor to object to his
creditor's account, after its presentation to him, is a matter of
fact for the consideration of the jury, and not a matter of law to
be decided by the court."
The defendants excepted to the instructions given and to the
refusal to instruct as asked by them. This action of the court
presents the only subject for our consideration. The
Page 77 U. S. 131
bill of exceptions does not purport to set out all of the
evidence. What other evidence was given, if any, does not
appear.
The first instruction given by the court below embraces two
propositions:
1. That an account rendered, and not objected to within a
reasonable time, is to be regarded as admitted by the party charged
to be
prima facie correct.
2. That if certain items in an account under such circumstances
are objected to within a reasonable time, and others not, the
latter are to be regarded as covered by such an admission.
We see nothing objectionable in these propositions. They are in
accordance with all the leading authorities on the subject.
[
Footnote 1]
The other exception also involves two propositions:
1. That the court refused to instruct the jury that, upon the
hypothesis stated, the account was objected to by the defendants
within a reasonable time.
2. That the court did instruct that what was a reasonable time
was not a question of law to be decided by the court, but a
question of fact for the jury.
Judge Story says:
"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. [
Footnote
2]"
The principle which lies at the foundation of evidence of this
kind is that the silence of the party to whom the account is sent
warrants the inference of an admission of its correctness. This
inference is more or less strong according to the circumstances of
the case. It may be repelled by showing facts which are
inconsistent with it, as that the party was absent from home,
suffering from illness, or expected shortly to see the other party,
and intended and preferred to make his objections in person. Other
circumstances of a like
Page 77 U. S. 132
character may be readily imagined. [
Footnote 3] As regards merchants residing in different
countries, Judge Story says: "Several opportunities of writing must
have occurred." [
Footnote
4]
We see no objection to the rule as he lays it down, in respect
to parties in the same country.
When the account is admitted in evidence as a stated one, the
burden of showing its incorrectness is thrown upon the other party.
He may prove fraud, omission, or mistake, and in these respects he
is in no wise concluded by the admission implied from his silence
after it was rendered. [
Footnote
5]
If the car time between Hagerstown and Chicago were ten hours,
as is alleged by the counsel for the defendant in error, and there
were "several posts" between the time when the account sent to the
defendants on the 16th of May reached them and the 28th of that
month, when they replied, the court properly refused the
instruction which they asked. Whether these facts were in evidence
does not appear. We are asked to take judicial notice of them. This
we cannot do, however well satisfied we may be upon the subject.
They should have been proved by proper testimony. But error is not
to be presumed. It must be affirmatively shown. The facts in
question may have been proved, and this may have been the reason of
the refusal by the court to instruct as asked by the defendants.
The propriety of the refusal depended upon the state of the
evidence. The terms of the instruction do not necessarily imply
that there were not facts in proof bearing upon the subject besides
those of which the instruction was expressly predicated. The car
time and the number of mails may have been proved or admitted. If
these facts were not in proof, the bill of exceptions, under the
circumstances, should have so stated. It does not appear from
anything in the record that the court erred in refusing to given
the instruction. The presumption is the other way.
The proposition that what is reasonable time in such cases is a
question for the jury, as laid down by the court below, cannot be
sustained. Where the facts are clear, it is always
Page 77 U. S. 133
a question exclusively for the court. The point was so ruled by
this Court in
Toland v. Sprague. [
Footnote 6] Where the proofs are conflicting, the
question is a mixed one of law and of fact. In such cases, the
court should instruct the jury as to the law upon the several
hypotheses of fact insisted upon by the parties.
If the evidence in the case was such as warranted the court in
refusing the instructions asked by the defendants -- if there were
several posts between the time of the receipt of the account by the
defendants and the date of the letter objecting to it -- the court
should have instructed the jury that the letter was not within a
reasonable time, which is the opposite of the instruction asked.
This would have been conclusive against the defendants. The error
of the court in submitting the question to the jury was therefore
favorable to them, and they have no right to complain.
Judgment affirmed.
[
Footnote 1]
Lockwood v. Thorne, 1 Kernan 170; 1 Story's Equity §
526.
[
Footnote 2]
Equity, § 520.
See also Lockwood v. Thorne, 1 Kernan
173, 174.
[
Footnote 3]
Lockwood v. Thorne, 18 N.Y. 289.
[
Footnote 4]
Equity, § 526.
[
Footnote 5]
Perkins v.
Hart, 11 Wheat. 256.
[
Footnote 6]
37 U. S. 12
Pet. 336;
see also Lockwood v. Thorne, 1 Kernan 175.