#### RYAN *vs.*GROSS.

[action on ACCOUNT, AC.]

1. *Account stated; what necessary to recover on.*— To enable a plaintiff to recover on a count upon an account stated, lie must prove, either an actual accounting together, or — what the law holds to be equivalent — an admission by the defendant, expressed or clearly implied, that a fixed certain sum is due to the plaintiff by the party making the admission.

2, *Same; what admissions wiU not change an open account to an account stated.*If, when an account for goods sold is presented for payment, or to be settled by note; the party does not dispute or deny, but admits, the correctness of the items, but does deny his liability to pay, and refuses to pay or to settle the account by note, and insists that some other person is justly chargeable with and ought to pay the same; this will not change the character of the account from an open to an account stated, and thereby defeat the defense of the statute of limitations’ of three years.

Appeal from the Circuit Court of «Jackson.

Tried before Hon. ~W. J. Haralson.

This action was brought by the appellee Gross, against the appellant Caroline Ryan, on the 8th of March, 1868. The complaint contained two counts. The first count was a count upon an account stated between plaintiff and defendant, for an indebtedness incurred by defendant when a *femme sole,*under the name of Caroline Frazier, and before her marriage with her present husband. The second count was based on an open account for the same indebtedness. Both counts are silent as to the time when the account was stated, or when the original indebtedness accrued. No pleas appear in the record.

It appears from the bill of exceptions, that prior to November, 1857, the appellant was tbe wife of Joseph P. Frazier. Frazier died in November, 1857, and his widow, in December, 1858, married her present husband, John ~R.ya.ri Appellee was a dry-goods merchant, residing in the same town with appellant, and the accounts with him, which were *371the foundation of the action, were contracted in the interval of time between the death of Erazier and the intermarriage of appellant with Eyan. Most of the articles itemized in the accounts, which were made out for each year, were for dry-goods for the use of the appellant, although some of the articles furnished were really for the use of the minor children of Erazier, who resided with their mother after Erazier’s death, his estate having been kept together, (for some reason not disclosed), and no assignment of dower or allotment of her distributive share having been made to appellant until after her marriage with Eyan. The proof, although conflicting, strongly tended to show that the credit was given to Mrs. Erazier individually, and not to Erazier’s administrator.

The last item of the account which the appellee proved was dated November 17, 1859, and hence an action upon it, as upon an open account, was barred by the statute of limitation of three years. To take the account out of the influence of that statute, the appellee offered testimony to show that the original accounts had become an account stated. Gross was examined as .a witness in his own behalf, and testified that in 1863 he sent the account, proved on the trial to be correct, to defendant and her husband by mail, with the request that they would execute their note for it; that by the next mail, or the one succeeding it, defendant and her husband returned said account, declining to give a note therefor, not denying or disputing the correctness of the items of the account, but insisting that the defendant was not liable, thereon, but that the account should be paid by the administrator of Erazier’s estate. Appellee further testified, that some time in 1866 he called on defendant and her husband to pay said account, or to close it by note, and that defendant and her husband, not denying the correctness of the items of said account, insisted that the defendant was not liable therefor, but that the administrator of her former husband’s estate should pay the account, as it was justly chargeable against the estate, and again refused to pay said account or to give a note therefor.

*372The defendant and her husband were both examined, but their testimony was not materially variant from that of the appellee. Mrs. Eyan testified that the account was returned to the plaintiff by the next mail after it was received, with a refusal to close it by note or to pay it, because she did not believe she was liable for or ought to pay the said account, but believed, and so informed appellee, that the estate of her former husband was liable for and ought to pay the same; that she never examined said account, and had never distrusted or denied the correctness of the items thereof, but had always denied that she was liable to pay it, but insisted that the estate of her former husband was bound for it.

This is, in substance, all the testimony adduced which is in any way material to an understanding of the points decided.

The court charged the jury, “ that if defendant by herself, or upon orders given by her, purchased goods charged in said accounts to her on her individual credit, and not on the credit of the estate of her deceased husband, although some of the goods purchased were not for her individual use, but were for the use of her minor children, and for the use of the family and plantation of her said former husband, and notwithstanding the estate of her said former husband was being kept together by his administrator, defendant was liable to plaintiff for gueh accounts; and if in 1863, plaintiff sent said accounts to defendant, who returned them to plaintiff, not disputing or denying the correctness of the items thereof, but admitting the same, and denying her liability therefor, and insisting the estate of her former husband was liable therefor, — then such a denial of liability was a denial of matter of law only, and her admission of the correctness of the items of the said account would be an admission making the accounts a stated account, on which suit could be brought within six years.”

The defendant excepted to the giving of this charge, and requested the court to give the following written charges:

1st. “ To constitute an admission of the correctness of this account, which will convert it into a stated account, *373there must not only be admission that the goods charged were sold and delivered, but something from which the jury can reasonably infer that the defendant assented or intended to assent to her obligation to pay the account. If such admission is accompanied with the declaration that the defendant is not hable for the payment of the account, but some one else is liable therefor, the account does not become a stated account.”

2d. “ That if the accounts were sent to the defendant, and by her or by her and her husband returned to the plaintiff by the first or next mail after they were received, without any denial or dispute as to the fact that the goods charged ,in said account were sold and delivered by the plaintiff, but with the statement that defendant was not liable for said account, and that the administrator of Erazier, deceased, or the estate of said Erazier, deceased, was liable for the payment thereof, — -then these facts will not constitute the accounts a stated accóunt; and notwithstanding these facts the accounts are open accounts barred by the statute of limitations of three years.”

The court refused to • give either of these charges, and the defendant excepted. The charge given, and the refusal to give the charges requested, are now assigned as error.

Walker *&*Brickell, for appellant.

Eobiííson *&*Walker, *contra.*

PECK, C. J.

1. The material and only real question in this case is, as to the character of the account, the foundation of the appellee’s action in the court below. If not an account stated, then the action was barred by the statute of limitations of three years.

Mr. Chitty says: “The present rule is, that if a fixed and certain sum is admitted to be due to a plaintiff, for which an action would lie, that will be'evidence to support a count upon an account stated.” — 1 Ch. Pl. 358, 14 Am. ed. from 6th London ed., corrected and enlarged.

In *Knowles et al. v. Michael et al.,*(13 East. 133,) Lord Ellenborough, C. J., says: “ If there were an acknowledg*374ment by thl defendant of a debt due upon any account, it was sufficient to enable tbe plaintiff to recover upon tbe count, for an account stated.”

In 2 Greenl. Ev. § 126, it is said: “In support of tbe count upon an *account stated,*tbe plaintiff must show there was a demand on bis side, wbicb was acceded to by tbe defendant. There must be a fixed and' certain sum admitted to be due; but the sum need not be precisely proved as laid in tbe declaration.” Again: “ Tbe admission itself must be voluntary, and *not qualified.*But it need not be express and in terms; for’ if tbe account be sent to tbe debtor in a letter, wbicb is received but not replied to in a reasonable time, tbe acquiescence of tbe party is taken as an admission that tbe account is truly stated.” — See, also, *Langdon et al. v. Roane’s Adm’r,*6 Ala. 527.

A recovery on a count upon an account stated can only be bad when a certain and precise sum is admitted to be due; an acknowledgment of a debt, but without naming or referring to a sum certain, will not enable a plaintiff to recover on this count, even nominal damages. — 1 Ch. Pl. 359.

Tbe original form or evidence- of tbe debt is of no importance, under tbe count upon an account stated; for tbe stating of tbe account alters tbe character of the debt, and is in tbe nature of a new promise or undertaking. If tbe orignal debt be an account for goods sold, tbe items need not be proved; for tbe action is not founded upon them, but upon tbe defendant’s assent to tbe sum ascertained to be due. — 2 Greenl. Ev. § 127. In other words, tbe action is not founded upon tbe original liability, but upon tbe new promise, wbicb may be either expressed or implied. It is not even necessary that tbe original demand should be a legal demand, recoverable at law; it may be of an equitable nature only. — Clu on Contr. 648, *a.*

2. Taking these principles and authorities as our guide, we are led to tbe conclusion that tbe evidence of the plaintiff himself, who was examined as a witness in bis own behalf, fails to show that tbe account exhibited and made a part of tbe bill of exceptions can be regarded as bn account stated.

*375No fixed or certain sum was at any time admitted by tbe defendant to be due to the plaintiff. Tbe account, when presented, was not acceded to by tbe defendant, nor was there any acknowledgment by ber that sbe owed tbe plaintiff any thing, but a persistent denial, from tbe beginning, that sbe was bable to pay said account or any part of it. There was clearly no admission by defendant that sbe was indebted to tbe plaintiff for any fixed or certain sum, or for any sum whatever, but a prompt denial that sbe owed him any thing.

Tbe most that can be said of this evidence is, that defendant did not, in so many words, deny or dispute that tbe items of said account were correctly stated, but it was a clear denial that sbe was liable to pay it, and a refusal on ber part in any wise to settle it. This evidence was insufficient to change tbe character of said account from that of an ordinary account for goods sold to an account stated. To constitute an account stated, it must receive tbe assent of both *parties.*— Carlisle *v. Davis,*9 Ala. 858. A certain fixed sum must be admitted by the defendant to be due to tbe plaintiff. — 1 Cb. PI. 358. It is not sufficient for tbe plaintiff to show that there was a demand on bis side, but be must also prove it was acceded to by tbe defendant, otherwise it would be considered to be an account stated. — 1 Greenl. Ev. § 126, *supra.*

Tbe defendant and ber husband were examined as witnesses, but their version of tbe matter was not materially different from that given of it by tbe plaintiff. Tbe evidence of tbe defendant perhaps might be sufficient to enable tbe plaintiff to recover on tbe common count for goods sold, if tbe statute of limitations were out of tbe way; that, however, is not tbe question to be decided in this case. Tbe statute of limitations is rebed upon by tbe defendant, and tbe plaintiff seeks to avoid this defense, and says the evidence shows that tbe account was changed from an open, to an account stated, which is only barred by tbe statute of six years.

3. Erom what has been said in this opinion, it is readily seen that tbe charge given by tbe court is erroneous. It *376improperly instructs the jury, that the mere admission of the defendant that the items of the account were correct, although accompanied with a denial that she was liable to pay the same, was sufficient to make said account an account stated; and that suit could be brought upon it within six years. To enable a plaintiff to recover on a count upon an account stated, he must prove, either an actual accounting together, or — what the law holds to be equivalent — an admission by the defendant, expressed' or clearly implied, that a fixed certain sum is due to the plaintiff.

The charges asked by the defendant, and refused by the court, are consistent with this opinion, and should have been given.

Let the judgment be reversed, and the cause remanded for another trial. The appellee will pay the costs.