Beach v. Kidder — 28 N.Y. St. Rep. 590

Majority

p. 590

Samuel G. Beach, App’lt, v. Amos N. Kidder et al., Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed December 30, 1889.)

Headnote

Account stated—Brokers.

When plaintiff, who was dealing in stocks, alleged in his complaint only that defendants, stock brokers, had not obeyed orders and it appeared that they had sent him monthly statements of dealings which he had acknowledged as examined and correct, and had thereafter retained such statements, Held,, that the latter had the force of accounts stated and were binding upon plaintiff. And this is so where no issue of fraud or mistake is tendered, even though the evidence may tend to show that plaintiff was-deceived and misled and approved of the account by mistake.

Appeal from a judgment dismissing the plaintiff’s complaint with costs on an order made at the Monroe circuit nonsuiting the plaintiff. This action was brought by the plaintiff, who alleges that the defendants as stock brokers bought and sold stocks for him on his orders and that they did not obey instructions, in consequence of which he suffered damage; and that they had money in their hands for which they had not accounted and which the plaintiff seeks to recover.

J. & Q. Van Voorhis, for app’lt; Wm. Nathaniel Coggswell, for resp’ts.

We think the evidence establishes:

First. That the defendants rendered and delivered to the plaintiff monthly statements of their dealings with him, stating the nature and character of each transaction and bringing the account to a balance down to the day when the same was rendered, so that the plaintiff, on reading the same, could fully understand the condition of the account as claimed by the defendants.

Second. That the retention of the monthly statements and his letters to the defendants acknowledging the receipt of the same, in which he admitted that he had examined and found them correct, gives each account as rendered the force and effect of a stated account.

p. 591

Third. That reading all the monthly accounts together it cannot be doubted but what they embrace the two transactions of which he complains, to wit, buying and selling one hundred shares of the capital stock of the Chicago, Burlington & Quincy Railroad and one share of the capital stock of the Chicago & Northwestern Railroad Company.

Fourth. The monthly statement rendered on the 31st day of January, 1884, shows a balance of $874.25 against the plaintiff and nothing on hand to offset against it, and was subsequent in point of time to the transactions complained of, and the receipt of this account was acknowledged by letter, in which the plaintiff stated that he had examined the same, and that it was correct in every particular.

Fifth. The accounts, as stated, are binding upon the plaintiff unless he can show some fraud or mistake which would destroy the presumption of their accuracy, and the form of this action presents no issue of that character, and for that reason the nonsuit was properly granted, although the evidence may tend to show that the plaintiff was deceived and misled and approved of the account by mistake on his part. Lockwood v. Thorne, 18 N. Y., 285 ; Murphy v. Ross, 7 N. Y. State Rep., 182; Knickerbocker v. Gould, 26 id., 651.

Sixth. In view of the facts which have been established, and the law of the case based thereon, it may be conceded that the plaintiff’s contention is true, that all his dealings were with the defendants as principals in the several transactions of which he complains.

Seventh. Judgment should be affirmed, with costs.

Dwight, J., concurs; Macomber, J., not sitting.