"Feb. 5th, Bill D. H. 117.80."

It is doubtful if the foregoing would, under any view, constitute an independent cause of action as an account stated. An account stated is a document-a writingwhich exhibits the state of account between parties and the balance owing from one to the other; and when assented to, either expressly or impliedly, it becomes a new contract. An action upon it is not founded upon the original items, but upon the balance agreed to by the parties. And the general rule is that when the stated account is admitted, it can be avoided only by averment and proof of fraud, mistake, etc. (6 Wait's Actions and Defenses, 424 et seq.; 1 Wait's Actions and Defenses, 191 et seq.; Hendy v. March, 75 Cal. 566, and cases cited.) But the account, in order to constitute a contract, should appear to be some thing more than a mere memorandum; it should show upon its face that it was intended to be a final settlement up to date. And this should be expressed with clearness and certainty.

The account sued on in the case at bar as an account stated is certainly very loose and unsatisfactory. But few items of account are given; there are no dates except one; dollar marks are not even placed before the figures; and there is no balance struck or stated. It looks like a mere memorandum put together hastily for further consideration-not like so important a writing as an account stated. It is possible, perhaps, for an account stated, which does not state a balance, to be good, if, from a calculation upon the figures given, a balance can be ascertained; but an an account sent by a merchant or banker, without any balance stated, would be a

document. However, a calculation of the figures writ

ten in Exhibit A will not give the balance asserted by plaintiff, viz., $1,851.96. It would differ from that result to the extent of at least $500. Plaintiff would explain that by saying that the item of $500, of the date of February 5th, accrued after the alleged settlement. Nevertheless, it is part of the alleged stated account.

Assuming, however, that the paper in question is not so deficient in form that it could not, upon any proof, pass muster as an account stated, still it is clear that defendant, under the positive denials in the answer, should have been allowed great latitude in introducing evidence to disprove it; and we think that the court erred in sustaining objections to evidence which he offered on that point. The evidence of plaintiff on the point consisted of his own testimony and that of his witness, Hirshfeld, who was very friendly to plaintiff; and it was to the general effect that some time in the month of February, 1891, plaintiff and defendant, together with Hirshfeld, met at the store of the latter to "see how we stood up to date"; that they had squabbles over certain matters, but that finally, on February 5th, they settled; that what is called the account stated was made by Hirshfeld in a book of plaintiff, and afterwards copied in a book of defendant; that a balance was struck showing that defendant owed plaintiff $1,851.96, and that defendant acquiesced therein, and agreed to pay said sum.

Defendant, on his part, testified that he met plaintiff at Hirshfeld's, because there was some company debts to be paid-particularly a debt to one Dinkelspiel-and to get some idea or knowledge how the company stood; that plaintiff's books "did not show much of any thing"; that he could not tell any thing about the account, and did not have any thing he could settle by; that he had defendant charged with different sums of money which he objected to; that they then settled with Dinkelspiel, and paid his bill; that plaintiff said that Hirshfeld's bills had been forgotten, and he would bring them next morning; that he did not bring them

next morning, but they settled with Hirshfeld, and then "quit." He further testified that plaintiff had sold stock, of which there was no account on his books; that defendant had trusted the whole business to plaintiff (which plaintiff admits), and that there were no accounts kept upon which any settlement could be made; that plaintiff had put into the capital stock only $3,110, as shown by said alleged account stated, and that he had not put in the second item of $3,000, or any part of it; that the $2,700 charged to defendant should have been only $2,100, and was money paid for defendant to one Kraus; that the $2,000 charged to defendant was wholly incorrect; that various other items in said alleged stated account were incorrect; and that large transactions were not mentioned in said account. In defendant's answer it is averred that between the commencement of the partnership and said February 5th plaintiff sold to certain parties named therein cattle to the amount in money of over $36,000.

Now, as to the question whether or not there had been an account stated as alleged in the complaint, there was the testimony of plaintiff and Hirshfeld on the one side, and the testimony of defendant on the other. Under this condition of the testimony defendant sought to introduce evidence of circumstances which he claimed would tend to show that it was-if not impossible at least highly improbable that he ever agreed to such an alleged account stated as that averred in the complaint. This evidence was ruled out by the court upon the theory that when there is an account stated parties cannot go back and attack the original items of the account unless upon proper averment of fraud, mistake, etc. This is no doubt the rule when the account stated is admitted, but in the case at bar the main issue was the question whether there was such an account. While that issue was before the court, of course, no evidence about the original items was admissible for the purpose of surcharging the account; but in determining the existence of the stated account the court was not con

fined to considering the mere naked "yes" and "no" of the witnesses. The defendant had the right to show, if he could, the inherent improbability of his agreement to such an account; and to that end evidence was admissible of at least the general nature of the circumstances of the business between the parties, and the character of the objections made by defendant to the items of the alleged account stated. If, for instance, it be true that the item of $2,700 should be only $2,100; that the item of $2,000 is false; that plaintiff contributed only $3,110, instead of $6,110, to the capital stock; that plaintiff, who conducted the whole business, had kept no accounts and had nothing to present as a basis of settlement; that there was over $30,000 worth of stock sold by plaintiff which formed no part of the alleged statement of account, and that defendant in the attempts at settle. ment had objected to all these things-then these matters were proper for the court to consider in determining whether defendant acquiesced in an account so radically different from the truth and from his own contentions. If after considering these matters the court should be of the opinion that there was an account stated as alleged, it would sustain the account without reference to the original items; and if, after such consideration, it should think the preponderance of evidence to be against the stated account, it would so find, and would then order an account to be taken de novo of all the partnership dealings. But in determining the first question before it, was there an account stated as averred, the court erred in ruling out a great deal of evidence offered by defendant.

There were about seventy rulings of the court sustaining objections to questions asked by defendant, each followed by an exception. Some of them were asked in cross-examination of plaintiff's witnesses, and others of them were asked of defendant and his witnesses. They are too numerous to be each noticed here. Some of them were, perhaps, for special reasons properly ruled out, but most of them should have been admitted. What

we have said will clearly enough show our views on the subject, namely, that evidence touching the nature of the partnership business of plaintiff and defendant, and the character of certain items put in and omitted from the alleged account, is admissible upon the point whether or not there ever was such an account stated as that relied on by plaintiff. A few instances of objections sustained will be sufficient to illustrate our meaning. Upon crossexamination of plaintiff an objection was sustained to this question: "He put in considerably more property than you did." Plaintiff having testified that he did not know if there was any indebtedness due the firm from third persons when the alleged account was taken, but there might have been, was asked by defendant this question: "Then it was taken into the account, if you talked it over?" and objection was sustained. Objection was also sustained to this question asked of plaintiff: "I will ask you if there was not considerable difficulty about a certain transaction in which Mr. Charley Kraus had received some money from Mr. Williams, and that there was a variance between your accounts and Mr. Williams' of $600 ?" Also to the following question asked of plaintiff's witness, Hirshfeld: "Do you know how much money has been paid in by either of the firm previous to that settlement?" Also to the question: "Now this $2,700, what was that?" Objection was sustained to this question asked of defendant: "Now, that first item, $2,000: state what you know about that?" Also to the question: "I will ask you, Mr. Williams, if, on the fifth day of February, 1891, at the store of Dave Hirshfeld, any account was settled or gone into in relation to the number of cattle. bought and sold, or the amount of money received from the sales of cattle of the partnership?" Also to the question whether there was any account or settlement on that day of partnership money. Also to the question whether there was any settlement or computation of amounts due to outside parties. Also to the question:

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Was there any settlement as to how much Mr. Coffee