Opinion
June 30, 1919.
John R. De Vany, for the appellant.
H. Westlake Coons, for the respondent.
The former action was on an account stated and the defendant had judgment therein.
"A judgment for defendant in an action on an account stated, on the ground that no account had been stated, is not a bar to a subsequent action on the open account." (1 C.J. 730.)
That rule is inapplicable here because the defendant did not recover his judgment in the former action "on the ground that no account had been stated."
Both pleadings in that action allege an account stated. Both pleadings also show the receipt and retention by the plaintiff by virtue of an account stated of $447.34 which it is admitted the plaintiff retained and had in his possession at the time of the trial of the former action.
The answer in that action admits that an account was stated as alleged in the complaint therein but alleges that there was a clerical mistake in the mathematical computation and that the correct balance instead of being $550, as claimed by the plaintiff, was $447.34, the amount actually paid to the plaintiff and retained by him.
The only issue before the jury, therefore, in that action was whether there had been a mistake in computation and on that issue the jury found in favor of the defendant.
That finding by the jury did not destroy the account stated. The rule is well established that where a mistake is shown to exist in the account as stated, such mistake may be corrected leaving the account in full force and vigor as a stated account as corrected. ( Bruen v. Hone, 2 Barb. 586; Carpenter v. Kent, 101 N.Y. 591, 594; Conville v. Shook, 144 id. 686; Ballard v. Beveridge, 171 id. 194, 200; Jarvie v. Arbuckle, No. 1, 163 App. Div. 199, 207; Staiger v. Klitz, 136 id. 874, 878.) The propriety of that rule is especially pertinent in the present case where the mistake consisted simply in a matter of computation not affecting the integrity of any of the items which were the subject of that computation.
The defendant introduced in evidence the judgment roll in the former action. The evidence and charge of the court to the jury in that action are not before us. We must assume, therefore, that the case was submitted to the jury and determined by them on a theory consistent with the pleadings. The pleadings admit no other theory than that there was an account stated between the parties, a clerical error in making the statement, and a payment in full of the corrected amount. Those facts having been judicially determined in the former action the judgment therein in favor of the defendant bars a recovery by the plaintiff herein.
It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide the event.