#### Frederick Lundquist, Appellant, v. Albert L. Quist, Administrator, et al., Appellees.

Gen. No. 19,813.

(Not to be reported in full.)

Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Affirmed.

Opinion filed November 19, 1914.

Statement of the Case.

Bill by Frederick Lundquist against Andrew M. Quist, E. P. Nelson and Albert L. Quist to restrain defendants from prosecuting a suit in the Municipal Court of Chicago, in which defendant E. P. Nelson was the plaintiff and the complainant was the defend*536ant, and in which suit E. P. Nelson sought to recover on a promissory note for $781.67 given by complainant to the defendant Andrew M. Quist, and by the latter indorsed to said Nelson. To reverse a decree dismissing the bill for want of equity, complainant appeals.

Abstract of the Decision.

1. Account stated, § 3 * —when evidence sufficient to establish. On a bill filed by a maker of a note to enjoin the indorser of the payee from prosecuting a suit thereon on the ground that there was a mistake as to the amount due the payee when the note was given, and that said note had been fraudulently indorsed to deprive complainant of his lawful and equitable defense to said note, held that a finding that there was an account stated at the time the note was given was sustained by a preponderance of the evidence, it appearing that there was a full and fair discussion between the parties of the account between them before the note was given, that complainant had never complained of the statement of account until shortly before the suit at law was brought, and that complainant had given money to the payee on several occasions to apply on the note.

2. Account stated, § 17 * —when will not be reopened for fraud or mistake. It is the law of this State that where parties, after a full and fair opportunity of examining and deciding upon their mutual accounts, have adjusted and settled them, the law will not permit a deliberate settlement thus made to be reopened, except upon the clearest evidence of fraud or mistake in the settlement, and the burden of proving fraud or mistake rests upon the party asserting it.

G. A. Buresh, for appellant.

Helmer, Moulton, Whitman & Whitman, for appellees; Charles R. Holton, of counsel.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Scanlan

delivered the opinion of the court.