Opinion
8 Div. 283.
March 12, 1931.
Appeal from Circuit Court, Limestone County; W. W. Callahan, Judge.
Sanders Woodroof, of Athens, for appellant.
When suit is on an account stated, no proof is required to show the correctness of the items; the recovery is upon the assent to the balance, and the subsequent agreement to pay that balance as if upon a promissory note. Loventhal Son v. Morris, 103 Ala. 332, 15 So. 672; Walker v. Trotter Bros., 192 Ala. 19, 68 So. 345; Powell v. Pickett, 219 Ala. 18, 121 So. 23; Jasper Trust Co. v. Lamkin, 162 Ala. 388, 50 So. 337, 24 L.R.A. (N.S.) 1237, 136 Am. St. Rep. 33; Lallande v. Brown, 121 Ala. 513, 25 So. 997; Smith v. Allen, 7 Ala. App. 397, 62 So. 296; 1 C. J. 682, 686; Reed v. Robinson, 213 Ala. 14, 104 So. 130; Burns v. Campbell, 71 Ala. 286.
Fred Wall and R. B. Patton, both of Athens, for appellee.
Mere promise of defendant to pay the debt of another on no other consideration than the debt itself is a nudum pactum. Richardson v. Fields, 124 Ala. 535, 26 So. 981; Dillworth v. Holmes Furniture Vehicle Co., 15 Ala. App. 340, 73 So. 288; Meyerson v. New Idea Hosiery Co., 217 Ala. 153, 115 So. 94, 55 A.L.R. 1231.
This is an action of assumpsit; the complaint consisting of two of the common counts, on open account, and on stated account. The plea was the general issue.
The plaintiff offered evidence tending to show that the defendant admitted that he was indebted to the plaintiff in the sum of $183.53, and, in connection with the testimony of the witness, offered in evidence a statement of account in favor of the plaintiff and against "M. W. B. Lyle Studio," containing items of account and credits thereon, running from January 1, 1928, to March 28, 1929, showing a balance of $183.53; it being shown that this statement of account was presented to the defendant, and he admitted its correctness and agreed to pay it.
At the conclusion of the evidence, the court, at the request of the defendant in writing, gave the affirmative charge for the defendant.
The proposition asserted to sustain this ruling is: "The mere promise of a defendant to pay the debt of another on no other consideration than the debt itself is nudum pactum" — citing Richardson v. Fields, 124 Ala. 535, 26 So. 981.
The proposition stated is good, but it is not applicable here for at least two reasons:
First, want of consideration is a special defense and cannot be availed of under the general issue. Code 1923, § 9470; American Oak Extract Co. v. Ryan, 112 Ala. 337, 20 So. 644; Sanders v. Williams, 163 Ala. 451, 50 So. 893.
Second, if it be conceded that the form in which the account is stated is some evidence that the account was originally against another, still there is evidence tending to show that the account is that of the defendant.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.