Where debt is admitted, promise to pay is implied, sec 774. An account may be evidence in favor of party stating, sec 775. Account stated proved by parol, sec 776.

No defence that indebtedness was merely equitable, sec 777.

Account stated not conclusive, sec 778.

Admission must be specific, sec 779.

Account settled between parties establishes only balance due, sec 780.

Sec 774

An account stated was, by a fiction of the old law of pleading, supposed to exist whenever one party admitted an indebtedness to another. In our present practice, adopting the fiction in this respect, when a balance is thus admitted, a promise to pay it is implied. To whatever sum is admitted, the hypothesis of an account stated is applicable as the starting of a new indebtedness.1 A single charge may be the basis of such an admission, or a series of charges, as the case may be.2 - Among business men, when the usage is to return promptly accounts submitted to them, retention of an account without exception may be regarded as an admission of its correctness.3 It is otherwise, however, when there is no such usage. In such case the retention of an account does not afford the slightest inference of approval of its contents. And this is the ordinary rule with tradesmen's bills.4

Where debt is admitted, promise to pay is implied.

1 Holmes V. De Camp, 1 Johns. 34.

2 Ch. on Pl. 16th Am. ed. (1879) 372; Leake, 2d ed. 119; Anson, 325; and see, generally, Knowles V. Michell, 13 East, 249; Jarrett V. Leonard, 2 M. & S. 265; Highmore V. Primrose, 5 M. & S. 65; Irving V. Veitch, 3 M. & W. 106; Hopkins V. Logan, 5 M. & W. 241; see Perkins V. Hart, 11 Wheat. 256; Holmes V. De Camp, 1 Johns. 36;.

Montgomerie V. Ivers, 17 Johns. 38; Martens V. Nottebohms, 4 Grat. 163.

3 Wiggins V. Burkham, 10 Wall. 129; Hayes V. Kelley, 116 Mass. 300; Tarns V. Levis, 42 Penn. St. 402.

4 Gibney V. Marchey, 34 N. Y. 301; Champion V. Joslyn, 44 N. Y. 653; and other cases cited, Wh. on EV. sec 1140.

Sec 775

When both parties have access to the books from which the account is drawn, and have authority to object from time to time to the mode of keeping the same, an account rendered may be evidence in favor of one of the parties when sent to the other and retained by him without objection.1

Sec 776

An account stated may be made by word of mouth; or it may consist of a short memorandum in writing, capable of being explained by parol;2 or it may be embodied in a note or other document indicating indebtedness, the reception of the written admission not excluding proof of oral admission.3 Between parties in privity with each other, negotiable paper may be evidence of an account stated,4 and so may an I. O. U.5 But an account stated is merged in a contract under seal when covering the same indebtedness and when the sealed document was given to secure the debt.6 No merger, however, exists unless the sealed instrument be for the same specific debt.7