#### Edward P. Hatch, Appellant, *v.*Gustave von Taube, Respondent.

(Supreme Court, Appellate Term,

May, 1900.)

Account stated — Sufficiency of evidence.

Tro of that an agent of a vendor called upon the vendee, delivered to him a paper which read “ Balance due on amount of account rendered, $132.12 ”, told him that he represented the vendee, that he had called to collect the account that was overdue, that the vendee then *469offered a lot of hooks in payment, that the agent refused them, that the vendee then paid five dollars and said he was going to pay the whole bill, requires a submission to the jury of the question whether the evidence established an account stated, and a dismissal of a complaint, based upon such a cause of action, is erroneous.

Appeal from a judgment of the General Term of the City Court of the city of Hew York, affirming a judgment in favor cf defendant, dismissing the complaint, and from an order denying a motion for a new trial.

The plaintiff was successor to Lord & Taylor.

Henry Tompkins, for appellant. »

Elias Rosenthal, for respondent.

*Per Ouriam.*

The questions determinative of the result of this appeal are, first — whether the complaint contains allegations of a cause of action upon an account stated; and second — whether the evidence considered most favorably for the plaintiff sufficed to establish an account stated.

We agree with the learned General Term in its view as to the first question, but as to' the second we feel obliged to differ, and will state briefly the reasons. The witness Otto testified that he called upon the defendant in April, 1895, and delivered to him a paper, the contents of which was *“*Balance due on amount of account rendered, $132.12,” and told defendant that he represented Lord *&*Taylor, and that he called to collect the account that was overdue; that defendant offered in payment a lot of books and, upon the nonacceptance of the offer, paid $5 on account and said he was going to pay the whole bill. This evidence called for the submission to the jury of the issue as to the account stated. To establish an account stated, there must be evidence of mutual assent to the account as rendered, either express or implied. Primarily it was necessary to produce evidence that an account showing a balance due had been rendered. And this duty the plaintiff performed, for, there was sufficient evidence to warrant a finding of the rendition of such an account in the circumstances of the delivery, by the witness Otto, of the paper, the contents of which was “ Balance due on amount of account rendered, $132.12,” and the action of the defendant. Erom the words and conduct of defendant, under *470the circumstances, an admission that an account showing a balance due of $132.12 had been rendered was fairly inferable. That the parties mutually assented to this account is a reasonable inference from what occurred at the time of the call of the witness Otto. The witness, in behalf of the plaintiff, presented-the paper claiming $132.12 as the balance due upon an account rendered, and the defendant said he was going to pay the whole bill, and did pay $5 on account. Certainly a mutual assent to the account as rendered should be implied from these circumstances. In Schutz v. Morette, 146 N. Y. 141, it is said that: “ The cause of action in such a ease is * * * the agreement of the parties made after the transactions constituting the account that a certain balance remains due from the one' to the other, and a promise of the party found to be indebted to pay to the other the sum so ascertained.” In the present case, the mutual assent to the balance due, and the promise to pay, were evidenced and uncontradicted.

The judgment is reversed and a new trial is ordered, with costs to the appellant to abide the event.

| Present: Truax, P. J., Scott and Dtjgro, JJ.

1 Judgment reversed and new trial ordered, with costs to the appellant to abide event.