{
  "id": 3332278,
  "name": "Pope County State Bank, Appellee, v. U. G. I. Contracting Company, Appellant",
  "name_abbreviation": "Pope County State Bank v. U. G. I. Contracting Co.",
  "decision_date": "1932-02-01",
  "docket_number": "",
  "first_page": "420",
  "last_page": "424",
  "citations": [
    {
      "type": "official",
      "cite": "265 Ill. App. 420"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "152 N. E. 623",
      "category": "reporters:state_regional",
      "reporter": "N.E.",
      "opinion_index": 0
    },
    {
      "cite": "255 Mass. 587",
      "category": "reporters:state",
      "reporter": "Mass.",
      "case_ids": [
        856868
      ],
      "opinion_index": 0,
      "case_paths": [
        "/mass/255/0587-01"
      ]
    },
    {
      "cite": "162 N. Y. S. 451",
      "category": "reporters:state",
      "reporter": "N.Y.S.",
      "opinion_index": 0
    },
    {
      "cite": "45 L. R. A. (N. S.) 535",
      "category": "reporters:federal",
      "reporter": "L.R.A.N.S.",
      "opinion_index": 0
    },
    {
      "cite": "172 Ill. 247",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        3174203
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/172/0247-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 366,
    "char_count": 5549,
    "ocr_confidence": 0.51,
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    "simhash": "1:33e847cf5a97fa2f",
    "word_count": 974
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  "last_updated": "2023-07-14T21:34:27.809681+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Pope County State Bank, Appellee, v. U. G. I. Contracting Company, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Barry\ndelivered the opinion of the court.\nThis suit was brought by appellee as assignee of the Evansville Sand & Gravel Company under section 18 of the Practice Act, Cahill\u2019s St. ch. 110, H18. The declaration consists of the common counts. Appellee recovered on the theory that there was a stated account. Appellant insists that there was nothing in the bill of particulars to show that the suit was based upon an account stated. We cannot consider the bill of particulars because it has not been preserved in the bill of exceptions. Star Brewery v. Farnsworth, 172 Ill. 247. Appellee insists that upon the argument of the motion for a new trial appellant waived all questions except that the verdict is contrary to the evidence and that this fact appears in the judgment order. If appellant waived any of its grounds for a new trial that is a fact which should have been preserved in the bill of exceptions.\nThe evidence fails to show an account stated. On June 9, 1925, appellee\u2019s assignor agreed in writing to rent to appellant a derrick boat, a steam boat, two dredge boats and four barges for the snm of $360 per day. Appellee\u2019s assignor was to furnish all of said boats and barges with full crews for one 10-hour shift, pay all wages and board, supply coal, oil and all supplies, pay for all repairs and all operating expenses and assume all responsibility regarding the equipment.\nA few days later the parties entered into a supplemental agreement to the effect that the lump sum charge of $360 per day should be divided as follows: For the derrick $70.00 per day of 10 hours; For the steam boat , _ 85.00 per day of 12 hours; Each of the two dredge\nboats 85.00 per day of 10 hours; Three barges at $10.00 per'\nday 30.00 per day One barge 5.00 per day.\nTotal for outfit $360.00\nAfter the making of the original contract appellee\u2019s assignor was paid each week. Credits were allowed to appellant for the time that the barges were not in use for as much as ten hours per day. All of the equipment was released by appellant in the fall of 1925.\nOn March 15, 1926, appellee\u2019s assignor made out a bill against appellant in which appellant was charged with the use of the barges for 14 additional hours in each day from June 9, 1925 to July 27, 1925, making a total charge of $2,401. The president of appellee\u2019s assignor testified that appellant\u2019s engineer called him on the telephone and said: \u201cEichel, you\u2019ve got me on the barge claim. I have o.k\u2019d your bill for $2,401.00.\u2019\u2019 Appellee\u2019s claim is based solely upon that testimony. No evidence was offered to show that the barges were actually used 24 hours per day. In fact, the president of appellee\u2019s assignor admitted on the witness stand that they were not used 24 hours per day. The alleged telephone conversation was denied by two witnesses, who testified that they were present in the office when McCormick conducted the telephone conversation and that McCormick did not make the statement above quoted.\nBut without regard to that alleged conversation and the contradiction thereof, it clearly appears from'the supplemental contract that the charges for the equipment were on the basis of 12 hours per day for the steamer, 10 hours per day for the derrick and dredge boats, but that there was no limitation as to the number of hours per day for the use of the four barges. The evidence is undisputed that when weekly payments were made, credits were allowed appellant for the time the barges were not in use. The last weekly settlement was made several months prior to the time it is claimed that the account stated was made out.\nThere is no evidence that there was any agreement or understanding that appellant was to pay more than $35 per day for the use of the four barges. That amount was fully paid with the exception of such credits as were agreed upon and allowed. Under the supplemental contract there was no basis for a claim that appellant should pay more than $35 per day for the use of the barges.\nAn account stated cannot be made the instrument to create an original liability; it merely determines the amount of the debt where liability previously existed. 1 C. J. 699; 45 L. R. A. (N. S.) 535, note. An account stated only determines the amount of the debt where a liability exists, and cannot be made to create a liability per se where none before existed. Stocking v. Seed Filter & Mfg. Co., Inc., 162 N. Y. S. 451. An action at law on an account stated lies only where there have been transactions previous to the statement of the account which created the relation of debtor and .creditor. Cavanaugh Bros. Horse Co. v. Gaston, 255 Mass. 587, 152 N. E. 623.\nWhile appellee\u2019s assignor and appellant had previous dealings, yet several months before the alleged account stated came into existence those transactions had been fully settled and at the time the alleged account stated came into existence there was no existing liability and there was then no relation of debtor and creditor. The judgment is contrary to the law and the evidence and is reversed with \u00e1 finding of facts.\nReversed with a finding of facts.\nThe clerk will insert in the judgment the following: \u201cThe Court finds that there was no account stated within the meaning of the law and that appellee was not entitled to recover. \u2019 \u2019",
        "type": "majority",
        "author": "Mr. Presiding Justice Barry"
      }
    ],
    "attorneys": [
      "John W. Browning, for appellant.",
      "Durfee & Holmes, for appellee."
    ],
    "corrections": "",
    "head_matter": "Pope County State Bank, Appellee, v. U. G. I. Contracting Company, Appellant.\nHeard in this court at the October term, 1931.\nOpinion filed February 1, 1932.\nRehearing denied March 8, 1932.\nJohn W. Browning, for appellant.\nDurfee & Holmes, for appellee."
  },
  "file_name": "0420-01",
  "first_page_order": 446,
  "last_page_order": 450
}