#### Thompson Brothers Feed Company, Appellee, v. Neiman Brothers Company, Appellant.

Gen. No. 22,596.

(Not to he reported in full.)

Appeal from the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed February 5, 1917.

Rehearing denied February 16, 1917.

Statement of the Case.

Action by Thompson Brothers Feed Company, a corporation, plaintiff, against Neiman Brothers Company, a corporation, defendant, to recover $828.39 on account stated for balance due on merchandise sold. From a judgment for plaintiff, defendant appeals.

T. O. Thompson, an officer of the plaintiff, testified that he had had conversations with the defendant’s *318officers in reference to the account, and that Louis J. Neiman, treasurer of the defendant company, said that if plaintiff would allow a disputed item of $105 the balance of the account, $828.39, would be paid; that Alexander Neiman, president of the defendant company and a brother of Louis, also said “that he would take care of us, he would give a chattel mortgage and that everything would be all right”; that a statement of the account was mailed to the defendant every month, and that the Neimans had never questioned its correctness except as to the matter of the $105 item which plaintiff allowed to defendant.

Abstract of the Decision.

1. Account stated, § 25 * —when evidence sufficient to show. Evidence held to support the finding of the court that the plaintiff’s claim arose on an account stated, in an action to recover for balance due after allowance of a disputed item.

2. Cobpobations, § 354 * —when hound hy action of officers. A corporation is bound by the action of its president and treasurer in accepting an account as an account stated.

3. Pleading, § 153 * —what defenses must he set up in affidavit of merits in action on account stated against a corporation. The defenses to an action against a corporation on an account stated, that the debt was due to an individual and that the agreement to pay the debt was voidable under the Statute of Frauds and was ultra vires as to the corporation, come too late when first made after the filing of an affidavit of merits; they should be specifically set up in such affidavit.

4. Pleading, § 153 * —when affidavit of merits is insufficient. In an action on an account' stated, an affidavit of merits held insuffi*319cient to show that the indebtedness sued on was that oí an individual and not the defendant corporation or that the defendant had entered into a voidable agreement to pay such indebtedness.

*318William Friedman, for appellant.

Levisohn & Levisohn, for appellee; Alvin E. Stein, of counsel.

*

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

Mr. Justice Dever

delivered the opinion of the court.

*3195. Trial, §, 295 * —when propositions of Taw should he tendered. Propositions of law should be tendered before announcement of final judgment.