Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-24

duced for the purpose of showing
what the implied contract between
the defendant and plaintiff was"
In Great Britain, by universal GUS
tom, the broker is liable to the un-
derwriter for the premium on mar
inc insurance. 10 A & E. Ency. e
ed), 979. "a broker who procures
insurance is a mere 'go-between, and
is not liable for a premium on a poll
icy procured by him for another, un-
less he acts under a del credere COM
mission, and this rule applies to
marine insurance unless abrogated
by usage, such as prevails in Eng
land, =" II. Cooley's Briefs
on ms, 917. Getting Mannheim Ins.
Co. v. Hollander %. c. 112 Fed,
549) Where an action is based on
an implied contract, general custom
or usage may be offered in evidence
to interpret and apply the acts proved
and relied on. Such matter is evi-
dentiary, and need not be pleaded.
Lowe v. Lehman, Is Ohio St., 179;
Fish v. Crawford, 120 Mich, 500;
Whitehouse v. Moore, 13 Abb. Pr.
142; Hewitt v. Week Lumber Co., n
Wis, 54S.
An account rendered and not OBJ
jected to within reasonable time be-
comes an account stated. Fleischner,
Mayer & Co. V. X. Kubli, ct al, 20 Or,
1913; Crawford V. Hutchinson, 3S Or.
573, 57S. Plaintiff comedies the in
cumbency upon him to show the pre-
existing relation of debtor and credi-
tor between him and defendant, in
order to form a basis for an account
stated
1t is claimed by defendant that
these accounts were original bills
only; they could not become stated
for the reason that the account Of
July contained not items included in
the June statement. A similar ques-
ton arose in the case Of Crawford ".
Hutchinson, supra, where 1t was in
sisted that an account stated could
properly exist only where the ac-
counts on both sides had been exam
ined and the balance admitted as a
true balance between the parts, or
where a statement, including all the
mutual accounts within the knowl-
edge of the creditor, had been rem
reder and not objected to within a
reasonable time. In the case re-
ferred to Mr.. Chief Justice Bean, at
page 5S1, says: "But the failure to
include a counterclaim arising out
of some independent transaction
does not necessarily prevent an ac-
count rendered from becoming an ac-
count stated as to everything em-
bodied therein, If no objection is
made thereto within reasonable
time" If the account of the plain
tiff only be stated, showing the
amount due, an acknowledgement OF
admission thereof is sufficient to con-
stitute it as stated, although the de-
fendant may have counterclaims
which are admitted Ware v. Man
ming, Sc Ala. 23S. And in Filler v
PEBBLES, 8 N. H., 226, it was held that
where an account was stated by the
parties, and an amount agreed upon
as due plaintiff within certain dates
but the defendants claimed some
thing on a prior account, there is g
sufficient stating Of account for the
amount named subject only to the
right of the defendant to set off any
prior claim not included therein
See also Normandin v. Grafton, Il
Or, sos, and Nodine v. Bank, Al Or.
1856.
Upon principle, If 1t be admitted oil
found that the account for the June
premiums became stated or settled
it would be unnecessary for the par
ties in settling the July account tt
!