Spain v. Van Norden

Headnote

Spain v. Talcott, 174 App. Div. 872 , affirmed.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 30, 1916, affirming a final judgment in favor of plaintiff entered upon the report of a referee bringing up for .review a former judgment of said Appellate Division, entered March 18, 1915, modifying and affirming as modifiéd an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action for an accounting. Plaintiff, an importer, entered into contracts with defendants’ testator who was a commission merchant and factor providing for advances by testator to the plaintiff against goods consigned to him by the plaintiff and against accounts resulting from the sale of the goods, these accounts to be billed in testator’s

name, made payable to him, and to be collected by and accounted for by him. The agreements provided for the charging and crediting of interest in the accounts current at the rate of six per cent per annum and for the charging of a commission by testator for his services, the rate of the commission being changed from time to time by the various modifying agreements.- Between July, 1902, and July 31, 1907, when the relations between the parties terminated, testator advanced to the plaintiff from time to time, under these agreements upward of $868,000, rendering accounts current monthly, showing the advances and collections, and in which interest was charged or credited and the commissions at the stipulated rate were charged. Plaintiff in his complaint alleged that the agreements were usurious and vo'id and asked that testator be required to account for all the moneys he had collected or received in excess of the amount of the advances, with six per cent interest. The answer denied usury and alleged among other things that the accounts current down to July 1, 1907, were accounts stated, and that the plaintiff by his acquiescence in the correctness of the accounts had waived his right and was estopped to call in question the correctness of the accounts rendered or the propriety of the charges or credits therein.